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North, J.
This is a suit in assumpsit to recover damages which the plaintiff alleges she has sus tained. by reason of injuries to her property resulting from a nuisance for the maintenance of which the defendant was responsible. A jury tried the ease and rendered a verdict in favor of the- defendant. The pláintiff reviews by writ of error.
For many years Mrs. Eva Moore, the plaintiff, owned and occupied as a dwelling the premises known as lot No. 10 of James Kress addition to the city of Alma, Michigan. This property fronts east on Park avenue. Nest south of it is a corner lot belonging to the defendant which faces Superior street on the south. This lot is 72 feet by 165 feet, and was vacant prior to 1920. At that time the defendant caused to be constructed upon his lot a brick building 70 feet wide and 155 feet in length, the same being located adjacent to the sidewalk lines on each of the two streets. The front 30 feet is used for a show-room incident to the business of a Ford sales agency, and the remainder of the building is used for automobile storage and a commercial garage. The rear or northerly end of this building is 10 feet from the north line of the lot and 29% feet from plaintiff’s dwelling. There are large windows in this end of the garage, which, during the summer time, are kept open for ventilation. The service entrance is on the Park avenue side and -about 20 feet from the northeast corner of the building. The gist of Mrs. Moore’s complaint is that this building as constructed shuts off the view from her dwelling towards Superior street and interferes with the ventilation and sunlight on the southerly side of her residence; that the business carried on at the garage produces great and unbearable noise in and about her residence both day and night; that offensive and poisonous odors, smoke and gases are discharged from defendant’s premises which render her property undesirable for residence purposes; that cars, trucks, and tractors coming to this garage produce a noisy and congested condition in the street adjacent to plaintiff’s property and create a litter, commotion, and dangerous condition; and that the sidewalk and street adjacent to the garage are besmeared with grease and oil; and disabled and dismantled vehicles at the rear of defendant’s premises render the same unsightly, all to the damage of plaintiff’s property. From the time the defendant’s building was completed it has been used as a salesroom and garage by him or his tenants. At the time this suit was started the sales agency and garage were operated by the Eademacher Motor Sales Company, which occupied these premises as lessee.
The plaintiff sought to have this case submitted to the jury under her claim that the construction of the building itself as a garage in a residential locality might be found to be a nuisance. This contention is stated in the appellant’s brief as follows:
“It isn’t because of the particular manner in which the garage is operated at any particular time. We complain of the garage as a nuisance. * * * Because the placing of a garage in a residential district, operated as a garage is ordinarily operated, becomes a nuisance.”
The trial court refused to submit the case to the jury on this theory, and instructed the jury:
‘ ‘ That the mere erection of the building to be used as a garage did not constitute a nuisance;” and the operation of a garage “can only become so (a nuisance), when operated in such an unreasonable and unusual manner, different than public garages are usually operated, that it may become a nuisance.”
Numerous assignments of error are based upon this holding of the court. It becomes important to consider whether the property in this locality is primarily residential, It is entirely free from building restrictions. Much, space is devoted in the record and briefs to setting forth the conditions surrounding these lots and bearing upon the question as to this being a strictly residential locality. No attempt will be made to review the details of the record, but it is sufficient to say it conclusively appears that the locality is not strictly and exclusively residential. Superior street, on which defendant’s building faces, is referred to in appellant’s brief as ‘ ‘ the main thoroughfare of the city. ’ ’ Two of the State trunk lines of travel traverse the street at this point. Three of the corners at the intersection of Park avenue and Superior street are occupied for business purposes. Prom this point in an easterly direction Superior street is principally devoted to business purposes, and it is only two or three blocks to the center of the business district. A little over a block to the west are the tracks of the Pere Marquette railroad and of the Ann Arbor railroad. And in this general locality there is a freight house, a wholesale grocery warehouse, coal yards, etc. Before the defendant constructed his garage, the building on the opposite side of Park avenue, which was originally a skating rink and is referred to in the record as the “cement barn, ’ ’ was used as a commercial garage, and in 1920 it was in use as a bus station. Thus it will be seen that the plaintiff is not justified in claiming that her home is located in a strictly residential district, but, instead, her property is in what must be called at least a semi-business district and immediately adjacent .to and unfortunately in the rear of property primarily suited for business purposes. It is therefore obvious that the plaintiff cannot claim for her property the same protection from the encroachment of business activities that she might claim were it in restricted territory or in a strictly residential district. Lansing v. Perry, 216 Mich. 23, and cases cited. There is no force in plaintiff’s contention that the erection of the defendant’s building as a commercial garage in this locality in and of itself constituted a nuisance; nor can it be said that carrying-on a garage business there in a regular and ordinary way can be made a basis of recovery in this suit notwithstanding it may have been detrimental to plaintiff’s property. Under this récord the trial court was justified in so holding as a matter of law and in refusing to submit these issues to the jury as questions of fact.
The remaining question of importance is whether the plaintiff’s contention that this garage as operated constituted a nuisance was fairly submitted to the jury. Assignments of error are based on the ruling and charge of the court:
“That the ordinary operation of a public garage is not a nuisance per se, that is, in and of itself, and can only become so when operated in such an unreasonable and unusual manner different than public garages are usually operated, that it may become a nuisance.”
In this connection the court also charged the jury:
“In the eyes of the law, no place can be convenient for the carrying on of a business which is a nuisance, and which'causes substantial injury to the property of another. Nor can any use of one’s own land be said to be reasonable which deprives an adjacent owner of the lawful use and enjoyment of the property. * * * As to what constitutes a nuisance must depend largely upon the locality of the plaintiff’s residence, as to whether or not it is located within or in close proximity to the business district of the city of Alma. * * * In passing- upon the question of whether or not it was a nuisance, as I say, take in consideration the facts and circumstances surrounding the entire matter. * * * If, under the rules I have given you, you find that the defendant and his tenants operated that garage in such a manner by the noise, the smoke, the gases and the vapor, and the unusual hours at night when noise was had in there, and testing motors, and racing motors, and other machinery in operation there, and that those noises were there as claimed by the plaintiff, and that she in her home suffered inconvenience, and discomfort, and annoyance in the occupancy and the use of her home, then the defendant would be guilty of maintaining a nuisance and the plaintiff would be entitled to such damages as I shall charge you later on she would be entitled to recover. So that is the first question for you to determine under the charge I have given; was it a nuisance; was it operated in such a manner that it became a nuisance and thereby injured the plaintiff and her property. ’ ’
Considering the charge as a whole, we are of the opinion that it was fully as favorable, to the plaintiff as could be asked. With the case thus submitted, the jury found against her on the issues of fact.
Complaint is also made by the appellant because the trial judge confined the right of recovery, if any, to the three years next preceding the bringing of the suit. In view of the verdict, which indicates that the plaintiff failed to establish the alleged nuisance, this assignment becomes inconsequential; but it may be noted that the ruling was correct. 3 Comp. Laws 1915, § 12323; Hoffman v. Railroad Co., 114 Mich. 316. See, also, 29 Cyc. p. 1261.
Other assignments of error, contained in the record have been given consideration, but we find in them nothing that indicates the plaintiff did not have a fair trial of the issues involved.
The judgment of the lower court is affirmed, with costs to the appellee.
Fead, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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McDonald, J.
This proceeding was brought under authority of the statute, Act No. 92, Pub. Acts 1893 (1 Comp. Laws 1915, § 4750 et seq.), as amended, to secure a determination by a jury of damages resulting to abutting property owners from the separation of grades at Franklin street in the city of Grand Rapids, Michigan. Pursuant to the' statute, the - city made an agreement with certain railroad companies for the separation of grades by constructing a viaduct to take the street traffic over their tracks. The construction has been completed. Being unable to agree with certain of the property owners as to the amount of their damages, the city brought this suit to have them determined. The de fendants have a leasehold interest in land on the northeast corner of Franklin street and Century avenue. They own the buildings on the land consisting of a mill and warehouse, where they have been conducting a wholesale and retail business in the sale of flour and feed for many years. On the trial it was their claim that their use of the property had been abridged by the change in the grade, that their trade had been deflected to such an extent that it had become necessary to remove to a different location or to raise the mill part of their buildings up to the grade. At the conclusion of the proofs, the trial court directed a verdict of no cause of action on the ground that no damages had been shown. The defendants have appealed.
We think the court erred in directing a verdict and in excluding certain testimony tending to show the necessity on which defendants’ claim for compensation was based-. He was moved to direct a verdict because as it appeared to him there was no evidence showing the necessity for removal to another location or to raise the buildings up to the grade. The extent to which the defendants’ use of their property was affected by the change in the grade appears from the circumstances and was a question for the jury. Franklin street is a busy thoroughfare extending east and west in the southern part of the city. It connects with two other main arteries of travel and business leading from the central district of the city. Before the viaduct was built, the defendants’ property was a corner location facing south on Franklin street which was then on a level with their buildings. In the front of their mill was a loading dock and scales. The grade was raised 34 feet. A stone wall 20 feet in height was built close in front of their building, thus prac tically shutting off access to their loading dock and scales. A witness for the city testified:
“Q. There is a loading dock at the south end of this mill, isn’t there!
“A. Yes, sir.
“Q. That they cannot get access to, you cannot drive up to it now, can you!
■ “A. No, sir.”
Further, it appears from the record that a customer of the defendants coming from the east on Franklin street must now drive 243 feet past the front of their business place, turn north down a curved street of considerable descent and again turn 175 feet to the rear of their property. These facts showing the relative situation of defendants’ property before and after the building of the viaduct furnish some evidence from which the jury could determine the extent to which its use has been interfered with. But there was other testimony directly bearing on the question which the court excluded. For instance, on the direct-examination of Mr. Kotvis, one of the defendants, he was asked:
“Q. Now, Mr. Kotvis, will you state whether or not you know of your own knowledge whether the building — after the building of this viaduct — while it was being built and after its being built, were there people who would have come to you to do business, who have not come there on account of not being accessible!
“Mr. Taggart: May it please the court, that is not competent, calls for a conclusion. •
“Mr. Turner: I ask whether he knows of his own knowledge.
“The Court: I think I shall have to sustain the objection. ’ ’
This question should not have been ruled out. It called for the best evidence of the manner and ex tent to which the defendants’ use’of their property had been abridged by the building of the viaduct. The defendants ’ right to' damages depended on a showing of the necessity for removal or for raising their building to a level of the grade so that it would be accessible to customers. This question bore directly on that issue. It was reversible error to exclude the answer.
Again, this’witness was ashed:
“Q. Now, I will ask you if there is any reason, since the viaduct has been built, why you may be compelled to vacate these premises and remove from there?”
An answer to this question was excluded on the ground that it called for a conclusion. The court erred in so ruling. The question called for facts, for reasons why a removal was necessary. At least it was preliminary to a statement of the reasons. For the same reason it was error to exclude an answer to the following question:
“Q. Let me ask you, Mr. Rotvis, can you tell us what effect the change of grade has had upon your business ? ’ ’
The defendants were not claiming damages for injury to their business, but-injury to their business by a change in the grade would show how they had been affected in the use and enjoyment of their property, and whether it was necessary to remove or to build up to the grade.
The defendants offered to show that there had been a large decrease in the amount of business done after the viaduct was built. The court excluded the testimony on the ground that the cause of the decrease was entirely speculative. In a proper setting, this testimony should be considered as evidence of the. abridgement to the nse of their property. For five years previous to the change of grade, the 'business had maintained a steady growth. Immediately afterwards under like conditions, except that customers were inconvenienced in gaining access to the mill, it decreased rapidly. In the absence of any other known cause, it would be a natural inference that the building of the viaduct was responsible for the falling off of the business. But if we say that, standing alone, this testimony was not admissible because the cause was speculative, it would have been removed from the realm of speculation if Mr. Kotvis had been permitted to testify that he knew some of the former customers would not come to do business 'with them because their buildings were inaccessible. In view of the circumstances in which it was offered, we think this testimony should have been received.
Mr. Timmer, a contractor, was called to testify to the cost of raising the mill building to the level of the viaduct. His testimony was excluded. This was error. In these proceedings, the measure of damages is the difference in the value of the property caused by the change in grade. The cost of refitting the building to the new grade is one method of arriving at this difference in value. However, the court would have admitted this testimony had he not been of the opinion that there was no competent evidence showing a necessity for raising the building to the level of the changed grade. In this he was mistaken.
In discussing the question of a directed verdict, we have considered testimony most favorable to the defendants. The city claims that the construction of the viaduct did no damage to the defendants in the use and enjoyment of their property, but is of value to them. These conflicting claims presented a question for the jury.
The following cases are of interest as to the proceedings involved in the determination of compensation to abutting property owners arising out of a separation of grades: City of Detroit v. Railway, 156 Mich. 106; City of Detroit v. C. H. Little Co., 146 Mich. 373; City of Detroit v. Railway Co., 163 Mich. 229; Mead v. Railroad Co., 174 Mich. 521.
The judgment of the trial court is reversed and a new trial granted. The defendants will have costs.
North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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North, C. J.
This is a mandamus proceeding by which the plaintiff seeks to have the defendant vacate an order whereby a default judgment entered in the circuit court of Wayne county was set aside in the case of Stanley Sczesny v. Louis G-. Lonyo and Jane A. Lonyo. The following steps taken in the litigation and the respective dates are material:
1926
July 30 Summons issued. Personal service August 10.
August 13 Bond filed to release garnishment.
Sept. 7 Declaration filed.
Sept. 16 Default filed.
Oct. 23 Default judgment taken for $3,310.
1927
April 27 Judgment satisfied.
1928
April 11 Substitution of attorneys filed.
April 17 Motion to vacate judgment and set aside default filed.
April 21 Order entered granting above motion.
From the foregoing it appears this motion to set aside the default and vacate the judgment was made more than one year and seven months after the default was entered, and that judgment had been taken and satisfied in the meantime. Circuit Court Rule No. 32, § 4, provides:
“In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed.”
It has been held repeatedly that the purpose of this rule is to fix a limit to the time within which a default judgment regularly entered after personal service and subsequent proceedings had thereon may be vacated, and that unless there is some irregularity in entering such default it cannot be set aside after the lapse of time specified by rule. Hakes v. Kent Circuit Judge, 213 Mich. 278, and cases cited. The return filed herein shows that the circuit judge set aside the default judgment on the ground that it was not regularly entered because the declaration was not filed within 15 days after the issuance of the summons- as provided by section 12407, 3 Comp. Laws 1915. This provision ,of the statute is not mandatory. Goodspeed v. Smith, 161 Mich. 688. The declaration was filed before the default; and therefore the default as filed was free from the claimed irregularity.
As a further reason for setting aside the default and judgment, it is set forth in the return that upon being served with the summons the defendants Louis Lonyo and Jane A. Lonyo promptly engaged attorneys to defend them in the suit, and that their default was entered in consequence of the oversight and neglect of their attorneys who failed to enter the appearance of the defendants. This, it is claimed, was a circumstance beyond the control of the defendants, in consequence of which they have been prevented from having their day in court. Relying upon Frank v. Union Trust Co., 239 Mich. 646, counsel for the defaulted defendants, who has been substituted for their former attorneys, now urges that this circumstance justified the circuit judge in setting aside the judgment. It should be noted in passing that the Frcmh Case was decided by an evenly divided court. Without holding such to be the law, we may assume in the present controversy that a client should ordinarily be relieved from the consequences of such neglect on the part of his attorneys, and still find ample reason in this record for denying to the defendants Lonyo the relief sought in consequence of the neglect of their former counsel. Their default was filed September 16, 1926. They knew of this before the six-month period had expired within which they could have presented to the court a proper motion to set aside the default. In fact such, a motion was filed in their behalf on January 7, 1927; and it appears that on the day the motion was set for hearing (January 15, 1927) the defendant Louis Lonyo was in court in person. For some reason not satisfactorily appearing in this record, the motion of January 7,1927, seems to have been abandoned by the Lonyos. They then waited a year and three months before making the motion to vacate with which we are now concerned. In the meantime the judgment had been paid by the surety on the bond given to release the garnishment. Such delay foreclosed any right the Lonyos might have had to be relieved of the default judgment.
The order of the circuit judge setting aside the judgment was erroneously made. It should be vacated and if necessary the writ prayed herein will be issued. The plaintiff will tax costs of this court against the defendants Lonyo.
Fead, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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93
] |
Wiest, J.
Plaintiff purchased from defendant a second-hand automobile, turned in a used automobile in part payment, paid some cash, and gave his notes, secured by chattel mortgage on the car for the balance. After using the car some weeks, during which time defendant attempted repair, plaintiff returned it to defendant and filed the bill herein to obtain rescission for breach of alleged warranty and to restrain defendant from disposing of the notes. Defendant denied the alleged warranty, asserted repairs and adjustments made without charge, and set up sale of the automobile under the chattel mortgage, credit given for the avails, and asked decree for the balance due. The circuit judge found the warranty, reliance thereon and breach thereof, and granted plaintiff a money decree for $275. Defendant appealed.
In making the sale, defendant’s sales agent stated that the car was in A-l condition, had had a complete overhauling, the block had been rebored, new pistons placed, and it was the same as a new car, and everything was in good running order. The car had not been properly put in repair, and had many defects which we need not detail, beyond stating that when plaintiff finally returned thé car defendant put in a new crank shaft, new valves in the motor, wrist pins, rollers, six pistons, fly wheel, four cork inserts, pressure plate, front bearing cap, cylinder head gasket, and a differential carrier assembly, at an expense of $200. Plaintiff purchased the car July 9th. He returned it twice for adjustments and repair of defects, and returned it finally the last of August, after driving it in all about 800 miles.
Counsel for defendant contends that the statements made about the condition of the car were but an expression of opinion and not a warranty. If plaintiff was led to make the purchase by statements of the condition of the car the representations constituted a warranty affording him right of rescission for breach thereof. The representations went beyond mere sales puffing.
There was an express affirmation of a particular condition of the automobile, and not a mere opinion. The affirmation .purported to be based upon facts known to the agent making the sale, related to the condition of the automobile, and were well calculated to induce its purchase. The statement of the agent that the car was the same as a new car may be classed as dealers’ talk or mere expression of opinion, but, with such laid aside, there remains the direct affirmation of the actual condition of the automobile, and such constituted a warranty, and for breach thereof there was right to rescind.
• In the face of asserted fact as to the condition of the automobile by reason of its repair, defendant is in no position to appeal to the maxim of caveat emptor.
Defendant invokes section 69, subd. 3, of the uniform sales act (3 Comp. Laws 1915, § 11900), requiring One, in ease of rescission, to return the goods in substantially as good condition as they were at the time of the sale, and insists that the car was not in such condition when returned. We think the same section covers this case in its provision that, if deterioration or injury is due to the breach of warranty, it is not necessary to make return in as good condition as when taken.
Plaintiff having filed no orief, the decree is affirmed, without costs to either party.
Fead, C. J., and North, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Campbell, J.
The relator, who keeps a hotel in the city of Jackson, presented a bill for the expense of boarding and lodging jurors and the officers in charge during a portion of the time occupied in the trial of a murder case -in Jackson county. The circuit judge deemed it necessary to seclude the jurors from association with the public, and, after various inquiries, determined that they should be sent to relator’s hotel,.the terms having been accepted and found reasonable. In conformity with the arrangement adopted by the court, the jury was given the accommodation agreed upon.
After the trial was over and the jury discharged, relator presented his claim to the board of supervisors, who, after some discussion, rejected it as not a county charge, and allowed none of it.
The grounds of this refusal, as now set up in defense of the application for mandamus, are the obligation of jurors to board themselves, and the want of power in the court to create county charges.
These reasons are to some extent connected, although not altogether dependent on each other.
It cannot very well be claimed that the various members of the jury are answerable to this relator, when they made no contract with him themselves, and authorized no one to do so for them, and there is no reason for holding that it is a charge on their fees. They are allowed a per diem fee, which is, no doubt, all they can ask for their services and expenses, so long as they are left at liberty to choose their own mode of living. The general custom in this country is to allow jurors to separate during the trial and before they are charged. But it is sometimes necessary to provide for their safe custody while waiting for agreement, and during that period it is now generally understood that they should not be deprived of food and necessaries. In civil cases this is frequently provided for by consent of parties. In criminal cases the public authorities have furnished the necessary conveniences, — sometimes through the sheriff, who has been commanded to do- so, and sometimes through direct orders of the court itself.
It must always depend upon the power and discretion of the court whether they shall be secluded or not. Mr. Bishop says this is the general American rule in capital cases (1 Grim. Proc. § 995); and it must, in the nature of things, be within the power of the court to exercise oversight concerning the place and manner of their confinement. It would be very unsafe, and might imperil the'validity of a conviction, if the care of the jury should be left to the discretion of an officer. We have had some illustrations of this in cases before us. The jury is, when sworn, a part of the court itself, and cannot be put beyond the supervision of the court and its discretion in determining what safety requires. It is not seriously disputed, and in the face of the settled law it cannot be disputed, that the power of the court extends to both the fact and the place of custody.
If the court has power to require such action, there must be a liability on the part of the public to pay such expense as it involves.' Our constitutional and statutory regulations are not consistent with the idea that any one can be compelled to furnish property, or the use of property, without compensation. Whoever has power to incur the obligation must necessarily have power to bind to its fulfillment. There are many things which become incidentally necessary in the support and action of courts which are not specifically provided for by law, and which no one is legally bound to furnish. Usually these incidental expenditures are made by the sheriff or clerk, and no one questions their correctness. But the courts cannot be left at the mercy of their officers in such matters. The practice has always been, and it is necessary, for the court itself to require the procurement of such articles and services. There is no reason for distinguishing this case from any other, where in the course of procedure an emergency arises for action which will create expense. It would be barbarous to confine jurors within the precincts of the court-house, and there is no authority to confine them as prisoners in jail. There must be some power to select a suitable place, and facilities for their comfort; and while, perhaps, the sheriff might be authorized to make this selection with the court’s approval, yet the obligation to pay for it would, none the less^come from the fact that the court required it. It is within the legislative power to arrange specifically how all these matters should be disposed of; but as the law now stands, the inherent power and duty of courts to exercise their functions must authorize such action as becomes expedient in the course of judicial business.
The fact that there are not many authorities on this subject rather tends to indicate acquiescence in this practice than otherwise. There is, however, some authdrity upon it. In •civil cases the charges are not usually allowed against the county, as the jury will seldom be put apart during trial, and the whole matter of their maintenance is arranged by consent, where this is done. The rule in civil cases is laid down in Young v. Buncombe 76 N. C. 316. But in criminal cases the power of the court to keep them in custody, and to bind the county to pay for their maintenance, is established by several cases, and is believed to have been dpne without dispute heretofore in this State. For cases elsewhere, see Fernekes v. Supervisors 43 Wis. 303; Com. v. Clue 3 Rawle 498; Com'rs v. Hall 7 Watts 290; State v. Engles 13 Ohio 492; Sargent v. State 11 Ohio 474; State v. Armstrong 19 Ohio 116; Commissioners of Allegany Co. v. Commissioners of Howard Co. 57 Md. 393; Bates v. Independence Co. 23 Ark. 723. The latter case is chiefly significant as showing it to be a county charge.
Of the power of courts to incur similar expenses generally for court exigencies, so as to bind the county, without statute,^ the authorities are quite clear. People v. Stout 23 Barb. 349; McCalmont v. Allegheny Co. 29 Penn. St. 417; Supervisors of Crawford County v. Le Clerc 4 Chand. 56; White v. Polk Co. 17 Iowa 413.
Our own decisions have always held that while the supervisors are, under the Constitution, exclusive judges of the propriety of services for the county, yet they have no such exclusive power over those county charges that are not for such services; and we have also held that the expenses of justice are incurred for the benefit of the State, [and only charged against the counties in accordance with old usage, as a proper method of distributing the burden. People v. Auditors of Wayne Co. 13 Mich. 233. Also cases in note to Kennedy v. Gies 25 Mich. 83 (annotated ed.). Any other rule would put it in the power of a board of supervisors to prevent courts from exercising their proper functions. In my opinion the supervisors were bound to audit this account.
Mandamus must issue as prayed, without costs.
The other Justices concurred. | [
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] |
Ohamplin, J.
This is an appeal from the probate court of Shiawassee county, in proceedings taken by plaiutifE to condemn the lands of defendants for the use of its railroad. In proceedings based upon the right of eminent domain it is well settled that every material requirement of the statute must be strictly followed, and the proceedings must show affirmatively substantial adherence to the course therein prescribed. An' appeal from the confirmation of the report of an assessment of damages by jury, brings up the case as it stood before the court confirmed the report (Peninsular Ry. Co. v. Howard 20 Mich. 18); and while under the present statute the notice of appeal must point out the errors and objections to the proceedings had in the premises, all others being deemed to have been waived, and while the statute required the Supreme Court to pass upon those only,, yet jurisdictional defects may be noticed at any stage of the proceedings, for the reason that if the court proceeds without jurisdiction, the whole proceedings are null and void; and it would be of no avail to send the matter back for further pi'oceedings before the court or another jury. It is therefore proper here to point out that the petition filed as the foundation of these proceedings, as decided by this Court in the case of Chicago & M. L. S. R. Co. v. Sanford 23 Mich. 418, was insufficient to confer jurisdiction, because it did not comply with the requirement of the statutes prescribing what such petition should contain. The law requires that each distinct parcel of land shall be described, and the owner thereof, if known, shall be named.
In the case referred to above, the petition, instead of describing the several parcels of lands, described the government subdivisions across which the line of the road was laid, as surveyed and located by the railroad company, reference being had to the map and survey. thereof on file in the county register’s office. It also stated with precision the starting point, which this petition does not do, and thence gave the survey by course and distance to the point of departure from the lands, and located such point. The following is the description contained in the petition before us in this case : “ A strip or parcel of land one hundred feet in width, commencing on the east line of the west half of the ■southeast quarter of section twenty-two, and running thence north 59 degrees, 10 minutes west, across the west half of ■the southeast quarter and the southwest quarter of said section twenty-two, township eight north, range one east, and lying fifty feet on each side of the center line of the Toledo, Ann Arbor & North Michigan Eailroad, as located and established as shown by said map and survey, and staked out upon and across said section; that the stakes are standing and placed in said parcels or strips of land to mark the line of said track; are in center line of the strips or parcels of land so proposed to be taken.”
This infirmity extends throughout the whole proceedings. In the reports of the jury no definite description of the land taken from each owner is given, but simply a parcel of land 100 feet wide, lying 50 feet on each side of the center line of the Toledo, Ann Arbor & Northern Michigan Eailroad, as located and established as shown by its map and survey, and staked out on said land, commencing on the east line of the southwest quarter of ,section 22, township 8 N., range 1 E., in said county, and running thence north 59 deg., west across said southwest quarter. The survey and map are not made a part of the report, and there is nothing to show whether the survey contains any data whereby the line can be found.
The foregoing is the description of Charles G. Munson’s land, and that relating to Ithiel L. Munson is equally indefinite. But aside from this, the report of the jury and the ■order confirming the same cannot be supported. The jury, in awarding compensation to Charles G. Munson, did not do •so on a money basis, but awarded that the damage and compensation which ought justly to be made by said railroad company to the owners or parties interested in said real estate, as well for the value of the same as for the damages resulting from such taking, is the sum of $125, and the construction of a wagon bridge across the cut in the most convenient place for said Charles G. Munson. This they had no authority to do without the assent and agreement of both parties. They could neither bind the company to construct a wagon bridge, nor compel Munson to accept such service as part compensation for his land appropriated for the company’s use. The like error pervades the report of the jury in the case of Ithiel L. Munson, as appears from the following extract from their report: “ And we did further ascertain and determine that the damage and compensation which ought justly to be made by said railway company to the owners or parties interested in said real estate, as well for the value 'of the same as for the damages resulting from such taking, is the sum of $125, and a public cattle runway under the railroad track, and suitable over-crossings at points most convenient for the said Ithiel L. Munson.” But worse than all this, the jury awarded to Ithiel L. Munson the damages and compensation for the land taken from Charles, and then allowed and awarded damages and compensation to Charles G. Munson for the land taken from Ithiel; and the order of the probate court confirms the report of the jury, errors included. No part of the proceedings can be sustained, and an order must be entered vacating and setting them aside, with costs.
The other Justices concurred. | [
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Sherwood, J.
These [are] two cases in which judgments Iiave been taken by confession on notes purporting to be given by a corporation. No process was served on the corporation, and the authority to confess the judgment is given by the treasurer of the corporation. That the treasurer was ever ■empowered to give such authority is not shown. The control of corporate affairs is in its governing board. The treasurer has no implied power, as such, to consent to judgment against the corporation without the institution of suit. Such a power would be a dangerous one,’and it is not likely any governing board would ever confer it as a general unrestricted power. The law has certainly not done so.
The judgments are, therefore, without any basis whatever, and they must be reversed.
The other Justices concurred. | [
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Campbell, J.
Complainant is a receiver appointed in supplementary proceedings on the law side of Wayne circuit court on the return of an execution unsatisfied in favor of Dahlman, Spiegel & Weil against Joseph Pfeiffer, whose wife, defendant Barbara, is brought in as holding or having received his property.
The judgment was rendered on a debt incurred in 1875. After execution returned, the usual investigation was had by examining defendant and his wife, and other witnesses. This having been done, the receiver, at the request of the creditors, filed this bill, which, upon its face, was designed to reach a stock of goods in Joseph’s possession, but claimed as Barbara’s, certain real estate, which was always in her name, and the accounts arising out of the tailoring business, which had been carried on under Joseph’s supervision.
The bill was demurred to chiefly for want of equity in substantial matters. The demurrer being overruled, defendants answered. The court below granted a decree holding defendant Barbara responsible for $1600 received by her on the sale of a former business transferred to one Charriper, with whom there had been a partnership, deducting some advances made by her to that concern.
An objection made to the right of the receiver to attack fraudulent transfers does not seem to us well taken. The case relied upon for this is Reed v. Baker 42 Mich. 272, where we held that in the legal supplementary proceedings no one but the judgment debtor could be treated as a party, and therefore third persons could not have their rights passed upon as they might under an ordinary creditors’ bill under which they were made parties. But we did not hold the receiver could not sue them. On the contrary, we think he may do so in such form, legal or equitable, as is best adapted - for that purpose.
But inasmuch as he must sue as an assignee, he must sue in such a form as the nature of the case requires, and if there is an adequate remedy at law for the judgment creditors or for himself, there is no occasion to resort to equity.
Under the statute whereby he was appointed, the receiver is entitled to whatever property Joseph Pfeiffer had, and to whatever he may have transferred in fraud of creditors.
The bill claims, and complainant now claims, that the stock in trade of the tailoring business belongs to Joseph Pfeiffer. If so, there was no reason why it could not have been levied on by execution. Neither is there any apparent reason why complainant, as assignee of Joseph, could not have replevied the goods if withheld, and also sued any debtors of the concern. The testimony taken under the bill discloses no new facts of any importance beyond wliat appeared from the disclosures before the bill was filed. It was then known in what way the business had been carried On, and what had become of the proceeds, and the bill waives an answer under oath, so that the grounds for equitable instead of legal action did not depend upon any question of discovery.
The business was carried on by Pfeiffer & Charriper as partners, up to July, 1880, when Charriper bought it out and paid in money and notes $1600. The notes were given payable to Barbara, and were for $1100. It is not now very important whether she or her husband was before that the real partner. It is clear that she furnished a portion, and probable that she furnished all, of the capital put in with Cliarriper’s, and it is also clear that Joseph did tailoring work which was instrumental in procuring the profits, and that the family expenses were met out of the business. But when Charriper bought out the establishment, it is beyond dispute that the proceeds were intended to belong to Barbara. If they were not legally hers, as the court below found under the testimony, that court has also found that the amount was a certain one capable of ascertainment by a money judgment, and was the only basis of recovery. The facts being known before the bill was filed, an action for money had and received would have reached the same result, and was a more suitable remedy than a bill. All the other grounds of equity are denied by the effect of the decree, which is not appealed from by complainant.
But it may not be improper to consider how these parties stand upon the facts. It was competent for Pfeiffer to relinquish the notes in question to his wife, unless it would be in fraud of creditors. No one appears to have any ground to complain of it but the judgment creditors in this case. The debt they sued on was earlier in date. But both defendants testify that it had been settled by transfer of property, and the creditors bring no proof to the contrary. Joseph is no doubt bound by the judgment, although he swears he did not defend because he did not anticipate he would be bound. But Barbara waived nothing, and it was open to her to prove the facts. There was no ground why she should be held responsible to them for the receipt of the money or notes.
It also appears that she put in this property into the business subsequently carried on under her husband’s charge, and if that was his business, as complainant claims, the fund is accessible in that shape, and she cannot be held responsible for both money and stock. We are not satisfied that she had any fraudulent purpose in fact, and if this property is not hers, it is only because she has put it where it is merged in her husband’s business, which was made valuable by his personal labor. But the decree does not seek to cover this business.
We think that the bill did not make out a case of failure of legal remedies, and also that the only relief actually granted was not well founded either on the facts, or as an equitable remedy.
Decree must be reversed and bill dismissed.
The other Justices concurred. | [
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Sherwood, J.
The plaintiff brought his action of replevin to recover a stock of drugs from the defendant, who was under-sheriff of the county of Kalamazoo, and who took possession of the same at the time the writ was issued by virtue of two writs of attachment levied thereon on the 8th day of August, 1883, and an execution issued upon a judgment rendered in one of the attachment suits. The goods were owned by and in the possession of Leon Kewney when the defendant levied his attachment thereon, and he, on the 17th day of May previous, gave to the plaintiff a chattel mortgage on the property, which was filed on the 7th day of June, in the township clerk’s office. The plaintiff based his right to recover the possession of the goods upon this chattel mortgage. It appears from the record that no possession had been taken of the property by the plaintiff at the time the levy was made; and before the writ of replevin was issued, the plaintiff, by his attorney, went to the defendant and demanded possession of the goods in question, claiming plaintiff’s right thereto under a mortgage, a duly-certified copy of which he then showed to the defendant, which was dated the 7th day of May, 1883, and defendant informed the plaintiff, in reply to his demand, after considering and taking counsel on the subject, that he would not give the plaintiff absolute possession upon the demand made under the mortgage presented, but would allow plaintiff to hold possession jointly with him. No other demand was made for the goods, so far as appears, by the plaintiff. The mortgage purported to be given by Kewney to the plaintiff to secure him against the payment of a note given by Kewney and himself to T. P. Sheldon & Co. for $300, payable at six months from date, and the record shows no mortgage of that date, given by Kewney, filed. Wilson paid the note September 15, 1883, being about two months before it became due. The witness says that he paid it because he was holder for it. He did not know as any one asked him to pay it; he paid it voluntarily. “ It looked rather squally that Kewney would be able to meet it when due.” The case was tried at the Kalamazoo circuit by jury, and the plaintiff obtained judgment. The case comes before us for review on error.
The mortgagee of chattel property is not the owner; his mortgage gives him but a lien upon the property. People v. Bristol 35 Mich. 28; Haynes v. Leppig 40 Mich. 602. An attaching creditor acquires nothing more, and neither lien ripens into a title to the property until sale on foreclosure. The contest in this case relates to the special lien under which each party claims. The right of the defendant to levy his attachment and execution upon the chattel mortgaged property is expressly authorized by statute (How. Stat. ■§ 1682), and such levy may be made at any time before the foreclosure. Nelson v. Ferris 30 Mich. 497; Cary v. Hewitt 26 Mich. 228. The right continues till redemption is cut off. Haynes v. Leppig 40 Mich. 605. It is only the right of redemption that can be taken. Bayne v. Patterson 40 Mich. 659. This leviable right pertains to the whole property, and is not apportionable. Worthington v. Hanna 23 Mich. 534. The whole interest may be taken on attachment for the purpose of making and perfecting the levy thereunder, ■and it may be held at least a sufficient time for that purpose, .and under an execution the officer has the right to take possession of the goods and chattels from the mortgagor, and detain them in safe and convenient custody, as against the mortgagee, for the time prescribed by law for bringing them to sale on the execution. Cary v. Hewitt 26 Mich. 228. By the levy “a tangible interest was taken, and lawfully” (see case last •cited, 234), and as Mr. Justice Graves said in that case: ■“ The law aims to secure, as far as practicable, the application of the debtor’s property to both demands, upon principles of justice.”
Default had not been made by the mortgagor when the execution was levied upon the property. The contingency of non-payment of the debt, which the mortgage was given to secure the plaintiff against, had not yet arrived. There had been really no forfeiture of the mortgaged property to the mortgagee, and the only possession the latter had a right to claim, even as against the mortgagor, was for the purpose of holding the same until it became due, for his better protection. His right to sell, by the terms of the mortgage, did not accrue until after that; and the creditors • even then had the right to levy upon the mortgagor’s interest, and take the property from the possession of the mortgagee, and make sale of the mortgagor’s equity of redemption, which was not cut off by any sale under the mortgage. The interest of the mortgagee could not be interfered with by the execution creditor, except by payment, or tender of payment, of the 'mortgage, and this he could do at any time before sale of the property. All these statutory provisions constituted a part of the mortgage when it was made, and all parties are bound thereby. They were all in full force at the time execution was levied upon these. goods, and at the time the plaintiff brought his suit in replevin, and under these provisions the plaintiff’s proceedings must stand or fall.
The right of plaintiff to possession of the goods at the time he instituted his suit is the vital question in this case. Cary v. Hewitt 26 Mich. 233. The record makes no question of the validity of the judgment, neither is there any valid objection to the execution issued thereon, under which the levy was made. The judgment was rendered August 23d and execution issued the same day and placed in the under-sheriff’s hands for service, and thereafter the service was made by taking the property into his custody. The defendant was proceeding to advertise and sell under his levy, when the plaintiff, on the 6th of September, came to the defendant and demanded the possession of the property by virtue of the chattel mortgage, a copy of which was then shown to tlie officer, dated on the 7th day of May, without showing any date of filing ; but for our present purpose, suppose it to be the one offered in evidence by plaintiff’s counsel, was the plaintiff then entitled to the possession under the law as above stated? We think not. The time had not expired within which the defendant was allowed to make sale of the property, and no sale had been made, nor yet could one be equitably under the mortgage. The note was not due until-the middle of October.
This suit was commenced on the 15th day of September. Upon the facts stated the plaintiff was not entitled to the possession of the property, as against the defendant, at the time he made demand for the same, and the status was not changed at the time suit was brought. It is claimed the under-sheriff departed from his statutory duty by failing to have the property appraised, and the exemptions to which Kewney was entitled properly set off to him. The'evidence tends to show that the defendant had not completed his proceedings upon the execution preparatory to making sale when the property was taken upon the plaintiff’s writ. He had until the day of sale within which to set apart the claimed exemption, if necessary. But whether he-did or not was immaterial to the plaintiff in this suit, as it was Kewney’s interest that was affected by the defendant’s proceedings, and not that of the plaintiff. Whether Kewney, would, as between himself and the defendant, insist upon such exemption, was 'of no consequence to plaintiff. It was Kewney’s personal privilege, which he could waive at his pleasure, and the charge of the court was to the effect that if the jury found from the evidence that the officers, after taking the inventory and appraisal, did not set apart Mr. Kewney’s exemptions, no demand was necessary, and, in that case and in case they found that the officers did set apart Kewney’s exemptions, and that a demand was made and the mortgage was given to secure the note, then the verdict should be for the plaintiff.
The mortgage was not given to secure the note, but to indemnify plaintiff against his liability to pay it in case Kew ney failed to make payment. The testimony *of plaintiff shows this fact, and the court submitted a fact to be found by the jury, in support of which no evidence was given. There is nothing in the plaintiff’s claim that the levy was excessive. The property taken on the execution was a small stock of drugs, subject to two chattel mortgages, besides the claim of plaintiff, amounting to the sum of $600. . It must be recollected in this connection that the property was held under an execution under which the defendant was perfecting his levy preparatory to a sale at the time the demand was made and this suit brought, and in such case the sheriff must be permitted, to some extent, to use his discretion whether or not he should turn the property over to the possession and control of the mortgagee before sale, when demanded. King v. Hubbell 42 Mich. 604.
If the demand is made by the mortgagee for the purpose of obtaining the same to make foreclosure, unless the mortgage is claimed to be fraudulent, he should so far yield to such demand as to permit the mortgagee so to do ; but in this case the record does not show the demand made for any such purpose. If it was, the fact was not made known at the time to the defendant, and I think it further appears from the record that the defendant yielded to the demand, in any event, sufficiently for that purpose. The record does not, in my judgment, present a case where the defendant was bound to yield to the demand of the plaintiff at all, before the day of sale, under the execution, and that the rulings of the circuit judge to the contrary were erroneous.
It will be noticed that in the view we have taken of the case, it is unnecessary to consider the question upon priority of claims between the parties, on account of the date contained in the certified copy of the mortgage under which the” plaintiff claimed the possession of the property at the time his attorney made the demand. We think, however, there is much force in the position taken by defendant’s counsel upon that point, and it is not easy to see why the plaintiff should not be confined to the particular interest he claimed at the time he made .his demand, which would, of course, prevent a recovery. It was his duty at the time, if he said any thing about his interest or the foundation or character thereof, to state the same correctly; but it turned out that the basis of the claim he made was without "any foundation, whatever, and not entitled to be regarded by the officer. Certainly it furnished a good reason why he should not accede to the plaintiffs demand at that time. There was nothing in what the plaintiff said, nor contained in the certified copy of the mortgage, requiring the defendant to make further inquiry or investigation; and for the purpose of showing that the plaintiff intended what he said at the time to be correct information to the defendant, and that he himself relied upon it. The defendant offered to show that the 'plaintiff, after he obtained possession of the property under his writ, foreclosed and sold the property, and himself bid it off on the sale made under the mortgage on the seventh day of May; but was not allowed to make this proof. For the purpose offered, the testimony was proper. We have not discussed the several errors in the order assigned or argued, but hav.e said all we deem necessary to enable the court to dispose of the case on a new trial in accordance with the view we have taken of it.
The judgment, will be reversed and a new trial granted.
Cooley, C. J. and Campbell, J. concurred. | [
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] |
Sheewood, J.
On the 7th day of March, 1884, the defendant was indebted on an open account for goods sold and delivered to the firm of Rothschild & Sittig, composed of Raphael Rothschild and Charles Sittig, in the sum of $164.15. On that day Rothschild & Sittig assigned the account to the plaintiff. March 3,1884, Leopold Erstein and Marx Erstein, simple contract creditors of Rothschild & Sittig, commenced a suit by attachment against them in the Federal court in Detroit, and on the 17th of June, 1884, recovered judgment in their suit for $686.62.
Prior to the rendition of this judgment, and on the 25th day of April, 1884, they caused garnishee proceedings to be commenced against the defendant, Nathan Burton, who was served the same day with the writ of garnishment, and on the 21st day of May thereafter, defendant filed a disclosure admitting the indebtedness on the day of the service of the writ, but states that previous thereto he was notified of the assignment of such indebtedness to plaintiff by the assignors,, and that if such assignment wa^ valid, he did not, on the day the writ of garnishment was issued, owe to the firm of Rothschild'& Sittig any sum of money whatever. On the same day, after the disclosure was filed, the attorneys for the plaintiffs in attachment filed in the United States circuit court- a demand for á statutory issue in tbe cause, and an issue was thereupon formed between the parties, whereunder said plaintiffs sought to recover the said indebtedness mentioned in the disclosure. The plaintiffs in the attachment proceeding claim the said assignment is fraudulent as against their right to have the indebtedness applied to the payment of their judgment against Kothschild & Sittig. The Ersteins obtained their verdict on the 11th, and their judgment in their principal suit on the 17th day of June, 1884.
On the 14th day of June the circuit court of the United States made an order in said suit that Amelia Kothschild, the plaintiff in this case, “ do appear in said court and maintain her rights under the assignment to her in such manner and form as she may deem proper.” She did not' appear, and July 5th the statutory issue was tried in the Federal court, and judgment rendered against the garnishee defendant for the sum of $165.14, and further directed that when the money was collected it should be paid into court, subject to the further order of the court.
The suit in this case was commenced in May, 1884, before a justice of the peace in Detroit to recover the indebtedness assigned to her by Kothschild & Sittig. Before the justice the defendant set up in defense by plea in abatement the proceedings instituted against him in the garnishee suit, set forth down to the time of the commencement of this suit. The plaintiff filed a demurrer to the plea before the justice, which was sustained. The defendant then pleaded the general issue, and upon the trial the justice rendered judgment for the plaintiff. The case was then taken to the circuit court for the county of Wayne by appeal. The defendant then filed a plea puis darrein, setting up the entire procedings to judgment had against him in the United States court, as herein-before set forth, and the payment of the money into court as required in said judgment, as a bar to the plaintiff’s suit. A trial of the case was then had before a jury, who, under the instructions of court, returned a verdict for the plaintiff, and the case is before us on error. No additional facts to those above stated appeared upon the trial.
This case presents very strikingly the rigor and hardship to which garnishees are not unfrequently subjected under the provisions of the present law. Here the garnishee is brought before courts in different jurisdictions because he owes an honest debt, and his creditor happens to be a debtor to those who are entire strangers to the garnishee, having no business relations whatever with him, and although he is able, ready and anxious to pay his indebtedness without any neglect or delinquency on his part, he is compelled to appear in two courts and litigate two suits, made liable for costs in each case, or may be to an extent beyond that of the original indebtedness, and then held liable to pay the latter in each suit. The judgment in one juris-dietion not being appealable, however erroneous it may be, .he has no means of escape therefrom.
It is not surprising that courts have felt it their duty to pronounce the .garnishee proceeding a harsh one, and restrict it to cases within the letter of the law. This does not properly characterize its effect in certain cases, under certain of its provisions. An actual fraud upon the rights of the garnishee is not unfrequently the result of some provisions of the statute, and it is to be hoped that this seriously •oppressive feature may at an early day receive the remedial -attention which alone can be given by the Legislature of our ■ State, that it may be so modified that a poor debtor, who is ready and willing to pay his debt when due, may be permitted so to do without being subjected to the vexation and ■expense of two or three lawsuits, and then be obliged to pay it a second time. 5
Counsel for plaintiff in this ease claims that the section of the statute under which the defendant insists the Federal -court obtained jurisdiction (How. Stat. §'8056) of the plaintiff is unconstitutional; that even though it be held ■constitutional it does not apply, if at all, to money indebtedness, but to goods and chattels only within the control ■or custody of plaintiff; that in no event can the plaintiff’s rights be determined in any other manner than by a ■court in which he may have his case tried by jury, and the ^-statute referred to secures to him no such right; that such ■right, as well as the manner of proceeding, is'left entirely in •the discretion of the court; that as matter of fact the defendant never notified the plaintiff to appear in the garnishee .proceedings in the Federal court, or would have permitted her to have defended in his name, nor does the order made by that court grant her the privilege of so doing. He also ■claims that the-affidavit in the garnishee proceedings was insufficient to give the court jurisdiction in the case. It is true, as was well said by Chief Justice Cooley in Bachelder v. Brown 47 Mich. 366, “the general rule is that judgments bind only parties and their privies; ‘but it is eqirally true that, those are held to be parties who have a right to control the proceedings, to make defense, to adduce proofs, and cross-examine the witnesses, and to appeal from the- decision •if any appeal lies.’ Peterson v. Lothrop 34 Penn. St. 223, 228. In this case, Calhoun v. Dunning 4 Dall. 120; Rogers v. Haines 3 Me. 362; Kinnersley v. Orpe Doug. 517, and other cases, all of them different in their facts, are cited 4o illustrate the general rule; and it is added that courts will look beyond the nominal party, and treat as the real party him whose interests are involved in the issue, and who conducts and controls the action or defense, and will hold him concluded by any judgment that may be rendered.” McNamee v. Moreland 26 Ia. 97; Stoddard v. Thompson 31 Ia. 80; Byrne v. Beeson 1 Doug. (Mich.) 184. But before the judgment can have this effect, the court in which the •suit or proceeding is had must have in some manner acquired jurisdiction in some legal manner constituting due process of law, and in which the right to divest him of his property ■may be passed upon by a jury, if he shall desire the same.
There is no question but that the Federal court obtained jurisdiction, and rendered a valid judgment in the original .-suit, or, at least, that is not questioned in this record; and if we concurred that the court acquired the right under its writ of garnishment to take further proceedings, and bring before it the plaintiff to have her right to the claimed indebtedness investigated and legally determined, it could only be done, as we have said, by due process of law. The order entered by the Federal court can in no sense be given any such construction. The right to appear and contest under all the provisions of the Constitution, when a person’s rights are invaded or brought in question, for the purpose of final adjudication in any court, State or Federal, is not left to the discretion of the court. This question was fully discussed by my brother Champlin and decided in the case of Risser v. Hoyt 53 Mich. 185; and the view there taken applies to this case with much force. ITere it is sought to conclude Mrs. Rothschild by a judgment in a suit to which she was never made a party, and with one of the parties to which she never had any dealings, without her ever having in any manner been brought in to defend, or ever having been served with any process, or in any way appearing or having been defaulted. This cannot be done under our Constitution and laws; and without the record showing any legal steps ever having been taken against her such defense can never be maintained against the claim of the plaintiff. Neither do I think that the section under which it is insisted that this plaintiff is estopped from making her claim applies to this kind of indebtedness sought to be held in this case; but, as contra-distinguished therefrom, it has reference to such goods and chattels as the garnishee has in his manual possession, or under his actual control, and should be so restricted. But it is unnecessary to discuss this branch of the case, or that relating to the adequate consideration and bona fides of the assignment.
It is impossible, in my judgment, for this Court to relieve this defendant from the possible consequences of an affirmance of the judgment in this case. That relief must be obtained, if at all, in the Federal court, which I have no doubt would furnish any needed remedy in its power to avoid oppression resulting from the enforcement of its orders, judgments or decrees. However this may be, our duty seems to' me plain and imperative, and
The judgment at the circuit should be affirmed.
Cooley, C. J.
I think Mrs. Rothschild was bound by the proceedings in the Federal court. That court had possession of the principal controversy, and it was entirely within its jurisdiction to take cognizance of controversies like the one before us, which were collateral to the main suit. Such cognizance was taken and Mrs. Rothschild notified.
Campbell and ChampliN, JJ. concurred with the Chief Justice. | [
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] |
Champltn, J.
Samuel B. Scott died on the 7th day of April, 1878, leaving a last will and testament, in which he directed (1) the payment of his debts; and (2) he devised to his wife, Mary A. Scott, all the residue of his estate, and appointed her sole executrix of his will. The will was admitted to probate, September 3, 1878. His widow qualified as executrix, but not as residuary legatee. September 3,1878; commissioners were duly appointed to hear, examine and adjust all claims against said estate. They duly qualified; gave the notices required by law of the time and place of their meeting, and filed their report, December 8, 1879. They allowed a claim in the words and figures following, viz. : “ Mrs. Mary A. Scott, preferred claim for expenses of last sickness and funeral, $1604.89.” The whole amount of claims allowed was $12,529.44. No appeal was taken from said report, and no part of said claim allowed Mrs. Mary A. Scott was ever paid. Said Mary A. Scott was married August 1, 1881, to one Robert McElrath. She died August 6, 1882, and the appellant is the executor of her last will and testament.
July 5, 1882, the appellee was duly appointed administrator de bonis non, with the will annexed, of the estate of Samuel B. Scott, deceased. His final account as such administrator was allowed February 4, 18S4, and the amount due from him to said estate is $6006.95. February 9, 1884, the appellant petitioned the probate court for Wayne county that said preferred claim be paid in full, and that the other claims be paid pro rata. March 12, 1884, the probate court made an order that the appellee “ pay over the residue of said estate to the creditors of said deceased in proportion to their respective claims excepting from such pro rata payment the claim of Mary A. Scott, allowed as a preferred claim by the commissioners on claims against said estate.” From this order appellant appealed to the circuit court for the county of Wayne. February 2, 1885, said circuit court rendered judgment that said order of the probate court be affirmed with costs, and that judgment for costs be rendered against the appellant and the sureties on the appeal-bond. Appel lant insists that this judgment is erroneous, because (1) the finding of facts does not support the judgment; (2) said circuit court erred in refusing to order said preferred claim to be fully paid, with interest; (3) said circuit court erred in refusing to order that part of said preferred claim which had been allowed for the expenses of the last sickness to be fully paid; (4) said circuit court erred in rendering judgment for costs against the sureties on the appeal-bond.
The dispute in this case is confined to narrow limits. The judge of probate ignored the claim allowed to Mrs. Mary A. Scott, in his order for final distribution, because it appeared to be for expenses of the last sickness, and also for funeral •expenses, united in one item, witli nothing to distinguish how much thereof was for expenses of last sickness, and how much for funeral expenses. For this reason it is claimed that the •action of the commissioners on claims was a nullity, and no part of the item can be recognized as a legal claim against the estate. It is not contended that in general the expenses •of the funeral, as well as those of the last sickness, are not legal claims against the estate, but that it is only the latter •that the commissioners are authorized by the statute to pass ■•upon; that the funeral expenses are a charge upon the assets in the hands of the executor or administrator, and must be passed upon and allowed by the probate court.
The objection made to the payment of the claim we regard .as technical, and based upon a construction of the statute which is too rigid, and contrary to that commonly accepted m practice in the probate eonrts of this State. The statute •designates both the charges for the last sickness and for funeral expenses as charges against the estate, and distinguishes them from expenses of administration. They are both made preferred claims, and rank next to the expenses of administration. "We regard the funeral expenses as proper to be passed upon and allowed by commissioners on claims as being a charge against the estate. In this case they were so presented and allowed, and no appeal having been taken from such allowance the person now representing such claim as entitled to be paid according to the priority provided by the statute. As the expenses of the last sickness and the-funeral expenses were both allowed- to the same person, no difficulty can arise in ordering payment on account of one having priority of payment over the other under the statute, and the amount due for each purpose being unascertained. The account presented to the commissioners should have shown how much was for expenses of last sickness, and how much for funeral expenses; and it may have been so — the record does not disclose the items or form of the account presented to the commissioners, but merely the allowance. The fact that it was allowed and reported by the commissioners in one item is not fatal to its validity or payment out of the assets of the estate. We are all agreed that the commissioners had jurisdiction to pass upon the claim of funeral expenses as a debt due from the estate. The action of the court in awarding costs against the sureties in the appeal-bond cannot be sustained. The point has been repeátedly passed upon in this Court. Willard v. Fralick 31 Mich. 431; Bondie v. Bourassa 46 Mich. 321; Feed v. Northrup 50 Mich. 442.
The order of the circuit court for the county of Wayne is reversed, and it must be certified to the circuit and probate courts for the county of Wayne that the order of distribution and payment of claims must be so modified as to require the administrator de bonis non, with the will annexed, to pay the claim allowed by the commissioners to Mrs. Scott for expenses of last sickness and funeral expenses as a preferred claim, in accordance with the statute in such case made and provided. The appellant will recover his costs of both courts.
Sherwood and Campbell, JJ., concurred. Cooley, C.. J. did not sit. | [
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Sherwood, J.
The common council of the village of Houghton, on the 12th day of April, 1884, filed a petition in the circuit court for the county of Houghton to condemn for the use of the village, and to supply the village and its inhabitants with water, a piece of land having upon it a spring, and certain rights of way over it and other parties’ lands, for a pipe-line between the spring and village limits. The appellant, the Huron Copper Mining Company, was made a party to the petition, with one other land-owner -who did not appeal, and two others who were not served with any notice or process, or otherwise proceeded against than by the filing of the petition'. The petition was filed and the jurisdiction of the court invoked under the provisions of law contained in an Act of the Legislature entitled “ An act to authorize cities and villages to take private property for the use or benefit of the public, and to repeal Act number 26 of the Public Acts of 1882” (see Pub. Acts 1883, p. 115); and the petitioner also showed to the court that it desired to and should, in addition thereto, “ avail itself of the provisions of law contained in How. Stat. §§ 3090-3109, and of any and all the laws of the State of Michigan applicable to the premises.” The petition further described the land desired to be taken, the nature and extent of its pro-' posed use, and claimed that the fee was necessary for the proposed improvement; states that the common council of the village had declared the proposed public use and improvement necessary; “ also had declared that they deemed it necessary to take the private property described for such improvement for the use and benefit of the public;” and further asked that a jury be summoned and impaneled to ascertain and determine the necessity to take the property described for the use and benefit of the public aforesaid, and to determine the just compensation to be made therefor.
Summons was issued in accordance with the prayer of the petition, and served on the 12th day of May following, upon the defendants the Huron Copper Mining Company and the ’Dacotah Mining Company. The Huron company appeared and moved to quash the proceedings, for the following reasons:
1. Because Act No. 124 of the Session Laws of 1883, under which the petition in this case is filed, is unconstitutional in these respects, viz.: (a) The title of the act only allows condemnation inside the city or village, and does not allow the condemnation of lands outside the city or village limits. (Z>) The act provides for the summoning of a jury to condemn property within the city or village limits, only from the city or village, (c) As to property outside the village limits, the act provides for the summoning of a jury from the vicinity of the property to be taken.
2. Because neither the charter of the village of Houghton nor any statute of this State authorizes the common council of said village to take or hold property outside of their corporate limits for obtaining and securing a supply of water.
The motion of defendants5 counsel was denied, and in the entry of the order denying the motion the following order was made by the court for obtaining a jury :
“ It is further ordered, pursuant to the prayer of said petitioner, no sufficient cause to .the contrary being shown, that the sheriff of this county make a list of twenty-four freeholders, residing in the vicinity of the property in the petition described, from which to strike a jury for the hearing of said petition as against said respondents, and that the attorneys of said petitioners and said respondents respectively, attend at the office of the clerk of this court on the first day of July, 1884, at ten o’clock in the forenoon of that day, for the purpose of striking such jury, - and that the sheriff, under-sheriff, or deputy-sheriff have then and there such list of freeholders, and that when sueli jury shall have been struck, the clerk of this court issue, under the seal of this court, a venire summoning such jury to -attend this court on the fifth day of July, A. D., 1884, at nine o’clock in the forenoon of that day, which venire shall be served by said sheriff.”
Thereupon the respondent’s agent made and filed in the case an answer, setting forth that the spring is situated but a short distance from the respondent’s stamp-mill, which is but a mile from the village ; that it obtains its supply of water for the mill frona a pond, which is insufficient in quantity and quality for its business; and that it had already commenced preparations for the purpose of utilizing the water of the spring for its boilers at its mill, and it cannot obtain water elsewhere for the purpose except at great expense, and the spring will soon become a necessity in its business ; that the spring will not afford a sufficient supply for the use of the village; that a supply can be obtained elsewhere for the village, at very little, if any, greater expense to the village; that the taking is not necessary for public use; that the reasonable compensation therefor would be an amount sufficient to enable the respondent to obtain an equal supply of good water from other sources, and re-asserting the reasons given why the proceedings should not be further prosecuted, stated on the motion to quash.
The sheriff thereupon, after having taken an oath for the purpose, made a list- of the names of twenty-four persons from which to select a jury in the case, and the respondent, the Huron Copper Mining Company, by its agent, refusing to strike six names from the list, .the court did so for it. The petitioner then struck off six, and the remaining twelve constituted the jury by whom the case was tried.-
Counsel for respondents, before the same were sworn, challenged the array of jurors for the reason they were not summoned from the vicinity of the property or body of the county. The facts were made to appear that they were all taken from a single township, and all but one taken from the village of Hancock, in that township, where the subject of water supply for that village and others had been freely discussed with a strong feeling in favor thereof, and in which discussion several of the jurors had taken an interest. The court overruled the motion, and exception was taken, and the case was ordered to trial.
None of the rest of the property necessary to be obtained had been secured, or proceedings taken for its condemnation. The deeds offered for that purpose came too late , and should have been ruled out. Testimony was taken upon the trial by both parties, upon the conclusion of which, under the charge given by the court, the jury returned a verdict that 'it was necessary to take said premises for the use and purposes described in said petition, and assessed the damages of the said respondent, the Huron Copper Mining Company, at the sum of $754. This finding of the jury was confirmed by the circuit judge on the 5th day of August thereafter.
The four pieces of property mentioned in the petition all lay outside the corporate limits of the village of Houghton, and the appellant’s parcel was the most remote therefrom. It will be noticed, by a careful reading of the statute, that all the proceedings were had ot intended to be had under Act 124, Sess. L. 1883, p. 115. The whole proceeding must stand or fall, find its support or condemnation, under the provisions of that act. The sections of our laws found in Howell’s Statutes, to which counsel for the petitioner has referred us, cannot be relied upon to aid the jurisdiction of the court in the case or to give warrant for the proceedings taken. Section 3090 does no more than to authorize the raising of money to pay for property taken and improvements made in cases when the same has been legally done. How. Stat. § 31*09, says the act therein referred to “shall apply to all cities and villages,” but it can have no application to any proceedings not taken under the act. We must, therefore, lay aside all the statutes except that of 1883 in the •consideration of the case in hand.
Counsel for the respondent, at the close of the trial, asked the court to charge the jury:
“1. The lands of the respondents, the Huron Copper Mining Company, and the Dacotah Mining Company, which the petitioners in this case seek to condemn for the benefit of the village of Houghton, are situated outside the limits of the village. Neither 'the charter of the village of Houghton, nor any statute of this State, gives to the petitioners the right to take and condemn lands outside of the corporate limits of the village. You are therefore instructed to find a verdict for the respondents.
2. These lands, which the petitioner seeks to condemn, are not the only lands necessary and requisite for the use of •the village in obtaining water from the spring described in the petition. In order to utilize said spring, the petitioners must obtain the use of other lands in order to reach the vil lage of Houghton. They have not obtained- such lands by agreement, and have not proceeded against the owners of such lands, although they made them parties in their petition. This proceeding is an indivisible one, and all the-owners of the lands, the use of which, or the title to which,, it is necessary to obtain in order to make the water available, must be made parties to the suit; and all must be-before the court at the same time, in order that the same jury may pass upon the necessity of taking and condemning their-lands. You are therefoi’e instructed to find a verdict for these respondents.
3. The petitioners have not shown any proceedings taken by them to obtain, by agreement or condemnation, land within the village limits for water purposes, nor that they have or own any such land for such purposes. In order to-enable the jury to pass upon the necessity of taking lands outside the village limits, the petitioners must show that they have the necessary lands and facilities within the village in order to utilize the water taken from outside. The petitioners not having shown, this, you are instructed to find a verdict for these respondents.
4. The petitioners have made no such case against these respondents as entitled them to a condemnation of,the¡ir lands described in the petition. You are therefore instructed to find a verdict for the respondents.
8. The title of Act No. 124 of the Public Acts of the State of Michigan for the year 1883, under which the petitioners in this case have proceeded, only allows condemnation of lands within the city or village-limits, and that portion of said act purporting to authorize cities and villages to take and hold lands or property outside of their corporate limits is unconstitutional and void. You will therefore find a verdict for the respondents.
9. The petitioners have not shown any authority conferred upon them by a vote of the inhabitants of the village of Houghton to take these proceedings, and therefore your verdict must be for the respondents.”
To the refusal of which to give each and every of said requests, this respondent then and there duly excepted.
These exceptions and the reasons stated in the respondent’s motion raise all the questions in the case requiring our-consideration. The proceeding was one to condemn land con tabling a spring of water and a sti*ip of land twenty feet wide for a right of way oyer which to conduct the waters. The land and spring were of no use for the,purposes sought without the right of way over the other respondent’s lands. The entire right of way was rightly, therefore, included in the petition and asked to be condemned in the proceeding. The object was entire, as much so as in the condemnation of land for a highway, and the proceeding should have been had against all the owners at the same time ; all should have had the notice required by the statute and the opportunity to have been heard before the same jury, and the privilege-of participating in selecting and impaneling the same. This was not dono. The petitioner proceeded upon the theory that it could have as many juries as there were different pieces of property belonging to different owners in the case to be condemned. I do not think the Legislature ever intended such a construction, or such expense and confusion as such a practice would be likely to entail upon the parties. The consequences which might follow forbid such construction, some of which are suggested by respondents’ counsel in their brief and argument, wherein he says if the petitioner’s theory upon the subject is correct, then one jury might hold that there was no necessity for introducing water into the village, while another jury might hold that there was; one-jury might find that one piece of land was necessary, while the next might find that the intervening piece, without which the first piece would be of no use, was not necessary one jury might be in favor of taking water from one place, another jury from another place. The bare statement of the-proposition demonstrates its absurdity. Public policy will not permit such a multiplicity of suits, especially where such evil results might follow. The jury must pass upon the necessity of obtaining a supply of water, and then upon the necessity of taking each parcel of land sought to be condemned for that purpose. I think such a proceeding is indivisible, and the same jury in the same case should decide as to all. Brush v. Detroit 32 Mich. 43. I think the court should have given the respondents’ second, third and fourth requests.
In selecting the jury the sheriff took them all from a single township, and all from a village where the subject-matter of the petition had been discussed freely with some apparent bias. As the testimony tended to show there was good reason for believing some might be biased, the challenge to the array should have been sustained; the jury should have been summoned from the body of the county. Large property interests are frequently at their disposal in this class of cases, and great care and circumspection should be observed in their selection. The requirements of the statute must be strictly complied with. Convers v. Grand Rapids & Indiana R. Co. 18 Mich. 467; Swart v. Kimball 43 Mich. 448; Powers Appeal 29 Mich. 504.
There is nothing in the charter of the village of Houghton authorizing these proceedings to be taken. The Act of 1883 does not authorize them. The provisions of that act are confined to condemning land within the municipality. Section 20 of the act reads as follows: “The cities and villages of this State, authorised to take or hold land or property outside of their corporate limits for obtaining and securing a supply of water to the municipality, or for any other public purpose, may take private property therefor, provided it is for the use or benefit of the public. * * * ” By this provision the Act itself limits its application to cities and villages authorized to take and hold lands outside of their corporate limits under their charters. It is entirely unnecessary to consider the constitutionality of the Act, so long as its provisions do not apply to the case under investigation. 1 know of no statute, general or special, in force at the time this petition was filed, authorizing by its expressed terms the prosecution of the proceedings under the theory of the petitioner’s counsel, and certainly the powers of the village of Houghton so to do cannot be implied, because by the proceedings it is proposed to take land against the will •of the respondent. Dill. Mun. Corp. § 469 ; Cooley’s Const. Lim. 528-541; Kroop v. Forman 31 Mich. 144; Detroit Sharp Shooters' Ass'n v. Highway Com'rs 34 Mich. 36; Powers' Appeal 29 Mich. 504; Specht v. Detroit 20 Mich. 168.
I think the proceedings in this case are without the authority of law, and the order entered, affirming the finding of the jury, should be vacated, and the
Petition dismissed' with costs.
Campbell, J. concurred.
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Oooley, C. J.
This case has once before been in this Court, and the opinion filed in deciding it is reported in 53 Mich. 507. It was sent back for a new trial, and has been tried with the result that the plaintiff has recovered a considerable judgment.
The action was brought to recover damages for an injury which is alleged to have been caused by the negligence of 'the defendant’s servant. The material facts, as they were brought out on the former trial, are the following:
Defendant is owner of a farm near the city of Marquette, which is managed for him by one Hodgson. Parcels are leased from the farm to laboring men for the raising of vegetables, and the lessees cultivate these parcels with the assistance of their wives and children. The manager has been accustomed to use dynamite on the farm to rid it of stumps. The dynamite is put up in rough wood boxes, and with it, in a small tin box, are the exploders. These are shaped like ordinary percussion caps, but much larger, and are partially filled with a fulminate, which is very powerful, and liable to explode if accidentally struck or picked with a pin or knife, or touched with fire. In the spring of 1883 a box of the dynamite with exploders was deposited by Hodgson under a small temporary shed near where parcels had been leased, and within a few feet of where the tenants would pass in going to and from their parcels for purposes of cultivation. Plaintiff’s father was one of these tenants, and on July 4, 1883, the father was at work on his parcel, and plaintiff, who was then eight years and four months old, went with a brother who was two years older to take the father his dinner. They worked with the father awhile, and then moved about at pleasure in the vicinity of the shed. The plaintiff looked into the shed, saw the box there, looked into it, saw the exploders, took out one, and, being aware of no danger, struck it with a stone, when it exploded and injured him severely.
This Court held, when the case was here before, that there-was evidence to go to the jury of negligence on the part of the defendant, in keeping the exploders thus exposed, and in dangerous proximity to where persons were accustomed to-pass and repass, and where small children, who were rightfully in the vicinity, and who were without knowledge of the peril, might take and handle them. It was also held that, as there was no distinct path for the tenants and their families in going back and forth, the plaintiff could not be-regarded as a trespasser in going to the shed, which was but a few feet from where a direct line from the highway to his-father’s parcel would pass ; and that defendant, knowing that his tenants made use of the services of their children, should have anticipated that they would follow their childish instincts, in taking and handling what was left exposed, when they were aware of no harm in doing so.
On the second trial the efforts of the defense were very largely given to showing that the plaintiff knew the danger of handling the explosives, and that he had repeatedly been warned to keep away from and not handle them. Also that the father of the plaintiff was grossly negligent in permitting the boy to be about the shed where he knew the dynamite and explosives were stored. The counsel for the defendant in this Court has presented succinctly,' but in a very forcible manner, the evidence given upon this branch of the case, and it must be confessed that the showing is a very strong one; so strong that, perhaps, if we were to pass upon the facts, we might be constrained to accept it as conclusive. But the jury) have given their verdict upon the facts; and we review, not the conclusions of the jury, but the rulings of the court.
The errors assigned relate, in the main, to the action of the court in submitting the case to the jury. Only one ruling upon evidence is complained of. For the purpose of showing that the plaintiff knew the danger of handling the exploders, and had been warned to let them alone, the defense called Dr. Northrup, who attended upon the plaintiff after the injury, and showed by him that some one, in the presence of the plaintiff, — and his recollection was it was the plaintiff’s mother, — made the statement that the boy had been frequently warned of the presence of the exploders, and told to let them alone. The plaintiff was at the time unde? the influence of an anmsthetic, and the doctor could not say that he was in a condition to understand what was going on about him. He was lying on a lounge and crying. Upon this evidence the trial judge remarked : “ A statement by the mother, not in the presence or hearing of the father, or the boy, the plaintiff in this case, in my judgment, would not be admissibleand he ordered it struck out.
It is claimed by the defense that the mother, as well as the father, was natural guardian of the boy (East Saginaw C. R. Co. v. Bohn 27 Mich. 503), that as such she was chargeable with care for him, and her negligence is imputable to him. The deduction from this is that her admissions are evidence against him to prove his or her fault. No authority is cited to this, and we are aware of none. The natural guardian has no power to admit away the rights of the ward whose person is committed to his custody. He is guardian of the person only, having no control of any estate the ward may possess, and could not be given a control except on judicial proceedings and after giving security for responsible care. This being so, it cannot be plausibly claimed that by an irresponsible admission he may deprive his ward of important rights. A right of action is as much property as is a corporeal possession, and, in the case of a minor, is protected bjr the law in the same way and under the same securities. The mother could not release it even for full consideration and by the most formal instrument; much less, therefore, 'could she, by mere word of mouth, when not under oath, or otherwise chargeable with responsibility, destroy his right of action by her admissions. The circuit judge was therefore right in his ruling. As the evidence did not fairly tend to show the plaintiff heard what was said, we have no occasion to consider what the ruling should have been had that fact appeared.
The following requests for instructions, on the part of the defense, were refused:
“There was nothing illegal/for the defendant to permit his servants in charge of the work of the farm to use explosives for the purpose of taking out stumps, and he had a perfect right to do so, and to keep the explosives where he saw fit upon his farm, provided he or his servants used reason.able care to see that all who had a right to be upon said farm were informed of the dangerous character of such explosives, if they did not know such facts, and also where the same were stored.
“If you believe from the evidence, that the explosives were kept in the shed in question at the time that the father rented his patch of ground for potatoes in the spring of 1883, ■and had been used previously for the purpose of taking out •stumps, and that the father of the plaintiff knew that they had been so used, before hiring his patch of ground, his contract of hire was with reference to the fact that these explosives were so kept there ; and he would have no right to complain on account of the place where they were kept, or the manner of their keeping, if they were kept after the hiring in the same manner, or as safely as they were at the time of .his hiring said ground; and if you believe that the father brought the plaintiff upon the farm in question, having such knowledge, and that he did not carefully watch and guard him, so as to prevent him from going where the explosives were, — then he was guilty of contributory negligence, which would be imputed to the child, if he was too young to comprehend the danger, and therefore the plaintiff cannot recover.”
The following is the charge of the judge as given, omitting formal parts:
“ The defendant in this case is, and has been for some •years, the owner of a farm near the city of Marquette. He has rented patches of land to poor people living in and about the city* for them to plant potatoes and other vegetables on, from year to year. The plaintiff’s father was one of those ■to whom the defendant so leased a piece of this land. The contract that was made between these parties involved the right of the plaintiff in this case to go with his father upon the land in question, — to go upon this piece of land, to take things for his father, and to work with his father upon the land. The children of the defendant’s tenants, under the law in this case, had a right to go to and from this land, as I Jhave said, to assist their parents.
Our Supreme Court, in passing upon this case, has used 'the following language, which is the law in the case:
‘ The moving about of the children upon the land where ■they were at liberty to go, while they were not actually employed, was as much an incident to their being there as the loitering or playing by children outside the traveled path of the highway as they go upon it to school or upon errands. Children, wherever they go, must be expected to act upon ■childish instincts and impulses, and others who are chargeable with the duty of care and caution towards them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they, in their immature judgment might naturally suppose they were at liberty fio handle or play with, they should expect that liberty to be ’taken.’ ”
‘‘ The defendant in the case has for some years kept and used upon his farm what is known as dynamite, a powerful explosive, and ‘ exploders,’ one of which has been introduced ■in evidence before you. He has kept those there, and used them in blasting stumps upon his farm. This he had a per.fect right to do. He had a perfect right to keep and use this property upon his farm for the purpose indicated. It seems they were kept in a box similar to the box that has been infiroduced in evidence before you upon the trial. The defend- • ant constructed a shed, which was made, as the witnesses have .indicated to you, by placing a piece of scantling upon the top of a stump, and by placing plank upon the scantling, the other end resting upon the ground. This box, containing these ‘ exploders ’ and other material used for the purposes of blasting, was placed under this shed, towards the lower end of the shed, near where the planks touched the ground. The law says it is negligence, gentlemen, to leave such things exposed, without any warning or notice, so that they might be handled or played with by children who had a right to be ■there; and here let me say that the acts of Mr. Hodgson, who was the foreman, or boss as he is called, upon the farm of the defendant, were in law the acts of the defendant himself, •and Mr. Harlow, the defendant, is responsible for all the acts ■done by Mr. Hodgson in regard to the use of this powder ■or these ‘ exploders.’ If, therefore, gentlemen, you find from the evidence in the case that this box containing these ‘ exploders ’ was placed under the shed in question, and was ’placed there in such a manner that children, including the plaintiff in the case, who had the right to pass to and fro near it, might, in following out their boyish or childish instincts,, go to it and get at its contents, I charge you that that would be an act of negligence on the part of the defendant for which he would be liable. It was his duty, under such circumstances, to be careful in regard to the use of these dangerous materials, and to give to those who had a right to be upon his property some warning or notice, or to take reasonable means to keep it from the reach of the children who had a right to be there; and if he left the box there, or his agent, Mr. Hodgson, left the box there, at the place indicated, either open, or so insecurely fastened that a child could open it and get at its contents, then I charge you that that would be an act of negligence upon his part.
But it is not enough, gentlemen, that there should be negligence on the part of the defendant in the case.' That alone does not fix a liability upon him to compensate a party injured in damages. There must be no contributory negligence on the part of the plaintiff himself. In other words,, it is the law that the plaintiff, before he can ask you to give him damages for such an injury, must show to you, by a preponderance of evidence, that he also is free from any blame in the matter; and that is what is meant by contributory negligence in the law. Any person knowing that there is danger, any person doing an act which is negligent on his part, cannot recover for an injury which happens, notwithstanding any amount of negligence there may be on the part of the other party. The law in this State does not apportion these acts of negligence; consequently the plaintiff himself must be free from negligence.
I now read yon the defendant’s fifth request: ‘ In order for a person suing in an action of this kind to recover, there must first be negligence, or the want ’of reasonable care, on the part of the defendant or his authorized agents, and it must also appear that the person who complains has been free from negligence, and that no want of reasonable care on his part has contributed to cause the accident, or that, if reasonable care had been used by him, the accident might have been prevented.’
There are two questions in the matter of contributory negligence in this case: First, contributory negligence on the part of the plaintiff himself; and second, contributory negligence on the part of the father. The boy was, at the time of the accident, a little over eight years old ; I think about eight years and four months. The law, gentlemen, in such a case, is not so unreasonable as to expect or require the same maturity of judgment, or the same degree of care or circumspection, in a child of .tender years as in an adult. As I have already said to you, children will do things in following out their natural childish instincts which persons of older years will not do; and consequently, of course, there must be greater care used where children are expected to go, and do go, than in a place where only adults or persons of mature years would go.
Now, first, was this child old enough to understand the nature and consequences of the act which he did ? If he was, if he knew about the surroundings, knew of the nature of the material with which he was about to deal, and knew it would explode when subjected to the blow of the stone with which he struck it, then, of course, he would be guilty of contributory negligence. •
If you should find, then, that this plaintiff was notified to keep away from the place where these £ exploders ’ were kept, if he was warned of the danger, and if. he was old enough to undei’stand such warning or notice, — to know and comprehend it — and still after such warning or notice he went and took out this £ exploder ’ from the box, and struck it in the manner in which he did, and was injured, he then could not recover, because he would be guilty of contributory negligence; and that, gentlemen, is one of the important questions in the case for you to decide from the testimony in the case, from the age of this boy, his appearance upon the stand, and all the evidence there is, whether at this time he was old enough to comprehend, know and understand the nature of the material with which he was dealing, and whether he had been notified or warned to keep away, and had been notified or warned of the danger. If he was, then that would be the end of the case. If he was not old enough to understand, even if he did know it, if he had not arrived at sufficient maturity and intelligence to understand and know, then another question comes up; and that is, the duty of the parent.
This is not a case, gentlemen, where the parent sends his boy to school, as he has a right to do, trusts him in the street to go to school, or to go upon errands. It is a case where the boy had come out on the land with him, to bring his dinner and assist him. 'Now, if this boy was of such tender years that he did not know and comprehend the danger, and could not understand it, it is the law that the parent stands in the place of the child. It is not the law, gentlemen, that the father can take his child, who has not arrived at maturity so as to understand these things, and that he can allow his child to go at large, and not. warn him of any danger, or take any steps to protect him against the danger with which he is surrounded.
If, therefore, you determine first that the child was not of such age and intelligence as to understand this, and you find from the evidence that the father knew that these explosives and these ‘ exploders ’ were kept there, that he knew of their dangerous character, and still he took no steps or employed no means to keep his child away from there, he would be guilty of negligence on his part; and for the purposes of this-case, negligence on the part of the father would be the same as it would be on the part of the child. But if the father did not know anything about this, if the father was not warned or notified, and did not understand it, or know anything about it, then, of course, he is not guilty of negligence. The burden of proof is upon the plaintiff. He must prove not only that there is no contributory negligence upon his part, but he must also prove the negligence on the part of the defendant.
Now, gentlemen, as to the question of damages. That is a matter that appeals to your sound discretion and judgment, bearing in mind, of course, that you must not be governed by any prejudice. It is a question of pecuniary damages,— or actual damages. You have a right to take in account the suffering and pain caused by the injury indicted by the wound; you have a right to take into account the fact to what extent he has been prevented from following the ordinary avocations of life of men who stand in the position in which he does. You have a right to take into account to what extent it has injured him, and will injure him in his daily pursuits. You have a right, also, to take into account the deformity occasioned by the wound, and the humiliation that would naturally follow by reason of such injury. 'Take all these things into account, and if you reach that point, give such a verdict as to damages as your own good reason and judgment warrant.”
To the following questions put to the jury at the request of the defendant, they returned answers as indicated :
First. (1) Did John Power, the father of the plaintiff, upon the fourth of July, 1883, at the time of the accident in question in this case, and previous thereto, know that powder and explosives were used upon the farm of the defendant for the purpose of blasting out stumps; and (2) that they were kept in the box in question in this case, under the shed that has been described by the witnesses ; and (3) that it would be unsafe to handle them carelessly?
To the first clause of this question the jury answered, Yes; to the second and third, No.
Second. Did John Power, the father of the plaintiff, at the time of the accident in question, and for half an hour previous thereto, permit the plaintiff, his infant son, while lie was hoeing potatoes, to wander about the farm, without giving him attention? And did his said boy during said time go where the powder and caps were kept, under the shed, and take one of the caps or “exploders” out of the box and place it upon a stone with one hand, and strike it with a stone in the other, and in that way get injured ?
To the first clause of this question the jury answei-ed, No ; and to the second, Yes.
Third. Was the plaintiff old enough to realize the danger of exploding the caps in question, by pounding one on a stone, while holding it in his fingers, as he has stated?
To this the answer was: “We find the boy old enough to realize the danger of exploding the caps in question ; but we find that he was uninstructed, and totally ignorant as to the power and danger of the ‘exploder,’ and the consequences resulting from so striking.”
Fourth. Was the plaintiff old enough to know he had no right to take the caps in question out of the box; that he had no right to take that which did not belong to him ?
This the judge refused to submit.
Fifth. (1) Had the plaintiff been notified, previous to the accident, not to go near the explosives, and that- he was in danger of being hurt if he did ; (2) and was he old enough to know what it was to be hurt, though he did not comprehend the full extent of the danger, and the full character and power of the explosives ?
To the first clause the jury answered, No. The second the judge refused to submit, as he did also the two following:
Sixth. Did the father of the plaintiff know, previous to the accident in question in' this case, that explosives were used by the defendant upon his farm in question to take out stumps ?
Seventh. Were the explosives in question stored in the shed on the farm in question when John Power rented his patch of potatoes in the spring of 1883, and did he then know it?
Eighth. At the time the injured boy took the cap from the box and carried it away, was he old enough, and did he possess sufficient intelligence, to know, that he was doing wrong in so doing ?
To this eighth question the jury answered, Yes.
Ninth. - At the timé the person injured took the cap from the box, was he old enough, and was he possessed of sufficient intelligence, to know that he was liable to be injured in any degree by the explosion of the cap ?
To this the jury answered: “ We find the boy old enough, and of sufficient intelligence; but he had no knowledge that he was liable to be injured in any degree.”
The following questions were also submitted at the request of the plaintiff:
First. Did the little boy understand the danger to which he exposed himself when he held the exploder with his left hand and struck it with his right hand ?
Second. Was the plaintiff’s father guilty of negligence in taking care of his boy at the time he was injured ?”
Both of these were answered in the negative.
The charge of the judge appears to us full and fair. The jury, before they could return a verdict for the plaintiff, were required to find not only negligence in the defendant, but an absence of negligence in the plaintiff and his father. This they must be understood to have done by their general verdict, but they also did so expressly in their answers to specific questions. It is complained that the judge declined to put certain questions; but there could be nothing conclusive in the answers to those which were not put, and the defendant was not, therefore, entitled, of right, to have them put. Harbaugh v. Cicotte 33 Mich. 241; Foster v. Gaffield 34. Mich. 356; Cole v. Boyd 47 Mich. 98. Had the rejected •questions all been put and answered as the defendant desired, • the answers .could not have overruled a general verdict against him.
The defendant also submitted several reqiiests for instructions which the judge refused. We have examined them, and are satisfied that the judge embraced in his general charge all that the defendant was entitled to ask. It is also complained that the judge read to the jury a passage from the opinion of this Court when the case was here before, ■saying to them at the same time that that was the law of the ■case. This, it is said, was unfair and misleading, as the case •was here before on a one-sided presentation of facts, and what was said by the Court was upon the record as it then ■stood in view of facts as then presented. But the quotation lays down only a ¡rule of law, as applicable to this record as ,to the other; and one which the judge should have laid ■down, in his own language, if not in ours. The jury could not possibly have understood from it that they were required to find the facts in any particular way.
The instruction as to dainages is complained of, but we •think without sufficient reason. It was proper for the jury to tsfke into account how the plaintiff might be restricted in his choice of occupation by the injury, and limited in his ability to .work:; and though the word “humiliation” was not a fortunate one to make use of, there can be no supposition that its use was misleading. There must be more or less ■of permanent annoyance from the mutilation of a limb, irrespective of the diminished usefulness, and the jury had a right to take this into account. This was all the judge meant.
The ingenious criticism of the judge’s charge by counsel has not satisfied us that any part of it is in law erroneous, .and we are .constrained to
Affirm the judgment.
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] |
Campbell, J.
Plaintiffs sued defendant for various services in handling logs. Defendant, among other defenses,, relied on certain set-offs and settlements, and upon a claim for the rent, or use of a dam, rented to plaintiffs, and intended to aid in raising a head of water in Hubbard Lake, at the outlet of which it was built, so as to help the log-driving in the stream below.
This lease was made by a firm of Mason, Luce & Co., the predecessor of the defendant corporation, October 12, 1878, and the lessee covenanted to pay (in addition to keeping in-repair) one-half of the gross receipts of the dam, which would consist, ás therein specified, of “ all tolls and money that may be earned by the use of said dam for driving logs,, or other purposes.”
On the trial, after plaintiff Robert Rayburn had proved the lease, and it had been read, and evidence was given to-prove its assignment by Mason, Luce & Co. to defendant, an objection was made and sustained that it must be proved by the subscribing witness, who was not produced. The same-ruling was made on various occasions during the trial. There seems to have been more or less reference to this lease in the testimony and in the charge, but as it was ruled out when objected to, it is not presumable that it was dealt with as in full force. We think that it was too late to raise the objection after the paper had been proved by Rayburn and read without objection. But we further think that where one of the parties in interest chooses to allow or to call the other party to prove an instrument, he may do so without calling the subscribing witness. Although there has been no entire agreement of courts on this subject where parties can be witnesses, the necessity of calling subscribing witnesses has not always been put upon tangible grounds. Where parties could not be sworn, it was reasonable to hold that the subscribing witness was a person who became so by agreement for their protection, who could not be dispensed with. It may be very proper' to allow a party to decline calling his adversary, and to insist that this witness shall, if practicable, be produced. But where one party is willing to call the other, the latter can usually-have no reason to complain, and we think that to this extent the reason of the rule has very little force to prevent it, and should not preclude such proof.
We think this lease was a very important factor in the case. It does not, as counsel argued, confine the rent to tolls. It includes all moneys earned by its use, and would therefore reach any portion of the earnings of Rayburn in running and driving logs, which could be fairly traced to the benefits of the dam. This would include any amount which would be a fair rental value, as recognized by the court below in the charge, but it might include more than any such estimated rental, because the help might sometimes be indispensable, and form a considerable share of the whole cost of running.
We are also of opinion that it was error to receive under objection the testimony of Rayburn as to admissions and statements of the deceased Mr. Mason. He was not only an officer of the company, covered by the statute while so acting, but he was also a member of the firm of Mason, Luce & Co., through whom defendant claimed by assignment. This is also within the statute.
We think, also, that where an account is presented at a certain expressed rate of charges for work, to obtain payments or advances, and money is actually advanced upon it at those rates; it is not competent thereafter to increase those charges, unless on clear proof of mistake, or other definite equity of recognized sufficiency.
As the testimony of Rayburn concerning an agreement to change rates of rental seems to have been irregular as proof of the statements of Mr. Mason, there would be no propriety in speculating upon future evidence. There is nothin^ in the payments actually received inconsistent with the lease itself. But there seems to be no pertinence in the testimony concerning the difficulties had with log-owners. If a change was made, it is not very important how it was brought about. We understand this to have been the final view of the court below, although this testimony was not distinctly ruled out.
We have discovered nothing in the record to indicate that any fraud or oppression was exercised in connection with the giving of the note on August 27, 1883, to balance accounts, and the jury should not have been allowed to assume there might have been.
The judgment must be reversed and a new trial ordered.
The other Justices concurred. | [
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Per Curiam.
After a jury trial the defendant was convicted of assault with intent to do great bodily harm less than the crime of murder. MCLA § 750.84 (Stat Ann 1962 Rev § 28.279). He now appeals contending that the trial court erred in denying his motion for new trial and his motion to vacate sentence.
The defendant’s sentence was within the statutory maximum and will not be disturbed on appeal. People v. Vandenboss (1970), 25 Mich App 702.
The defendant contends that the trial court erred in admitting evidence which had been illegally seized. The defendant did not make a timely motion to suppress and, therefore, this issue is not properly before us. People v. Heibel (1943), 305 Mich 710; People v. Ferguson (1965), 376 Mich 90; People v. Wilson (1967), 8 Mich App 651.
The defendant contends that it was error to allow the prosecution to make use of his record of previous convictions. The defendant took the stand, and, therefore, it was proper to allow him to be cross-examined about his prior convictions for the purpose of testing his credibility. People v. Cybulski (1968), 11 Mich App 244.
The defendant’s final contention is that the trial court erred in allowing the prosecution to display a shotgun to the jury. During the trial the prosecution attempted to introduce a shotgun into evidence. The shotgun was not admitted because the witnesses were unable to identify it as the weapon used in the commission of the crime. The defendant, who contended that he acted in self-defense, admitted that he had used a shotgun that looked like the gun produced by the prosecution. There is no indication of bad faith on the part of the prosecution, and on this record we cannot find that the display of the gun was prejudicial.
Affirmed. | [
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Holbrook, J.
Defendant Norman G. Fisher and Douglas E. Vanderbush were tried in a joint trial and convicted by a jury in the Circuit Court for Midland County on October 21, 1969, of the crime of larceny of property of the value of more than $100. MCLA § 750.356 (Stat Ann 1971 Cum Supp § 28.588). Both defendant Fisher and his codefendant Vanderbush were represented at the trial by the same counsel. Defendant was sentenced to a prison term of from two to five years.
Defendant Fisher has taken a delayed appeal by leave of this Court dated July 17, 1970.
The people presented evidence which showed that at about 2:30 a.m. on August 23, 1969, two police officers, while cruising on the expressway, observed a pickup truck coming out of the Gerace Construe tion Company without its lights on. This area was occupied by small industrial enterprises. To drive to the vicinity where the truck had been seen, it was necessary for the officers to proceed down the expressway to where a cross-over road was located. Upon reaching the location, they proceeded into a driveway of the Phoenix Sprinkler Company and drove to the rear of the building- where they saw a pickup truck with two men loading copper tubing onto the truck. Both officers identified the defendant as one of the two men. The officers stopped their car in close proximity to the truck and the two subjects started to flee. One of the officers pursued the two subjects directly, and the other ran around the building in the opposite direction to prevent their possible escape. In a matter of seconds both Fisher and Vanderbush stopped upon being informed that the officer was a police officer and that he would shoot if they didn’t stop. Defendant was on the ground and Vanderbush was standing at the time that they were apprehended. Each had a pair of gloves. Defendant’s gloves were on the ground next to him, and Vanderbush’s gloves were in his pockets. Both were arrested and taken back to the squad car at which time two other officers arrived. One took pictures of the scene, which were admitted into evidence.
Codefendant Vanderbush took the stand and testified that he had been drinking heavily that night and was not thinking straight. He further stated that there were three individuals at the scene, that they intended to steal the copper pipe, that he and Kenny Fisher (no relation to appellant) were actually loading the pipe, and that appellant was the lookout man. A warrant for Kenny Fisher had been issued some time before the trial, but he was not located in spite of a diligent search for him by various police agencies in the state. Vanderbush contested the number and size of the copper tubing-on the truck, stating that there was not more than seven pieces loaded and that nearly all of them were of the one-inch-diameter size. This testimony placed in issue the value of the copper tubing because if he had been correct, and nearly all of the tubing was of the size of one-inch diameter, it would not amount to the value of more than $100. If the value were less than $100, it would he a misdemeanor. Codefendant’s sole defense to the action itself was that he was so intoxicated that he did not have the ability to entertain in his mind the necessary intent to steal.
The defendant’s mother was a witness for the people and her testimony was to the effect that she had talked with her son at the jail after the occurrence. Her pertinent testimony appears in the record as follows:
“Q. And, did you ask Norman something in the course of this conversation with him?
“A. Yes, I did.
“Q. What did you ask him?
“A. I asked him why he did this.
“Q. And, what did he say?
“A. Well, he said that he didn’t know. He said that they had been drinking and that he just didn’t know. He said that when he left the house they were just going for a ride.
“Q. Who was he with?
“A. There was Norman, Doug Vanderbush, and Kenneth Fisher.
“Q. And, your son admitted to you that he took these pieces of pipe?
“A. He said that he got up to there with the hoys; and, he said he was stoned; and he said they got out of the truck; and he said he was scared and shaking; and that Doug and Kenneth told him to leave if he was scared, just to take a walk; and so, he said he walked up the driveway on the east side of the Phoenix Sprinkler Company and walked out to Savage Road. He said he walked hack around the back of the building on the west side and he seen the officers coming and he laid down in the grass and he hollered to Doug, ‘The police are coming.’ Well then, when they run, Doug run toward Norman and Kenneth Fisher run the other way; and, when Doug ran toward Norman, he jumped up and started running with Doug.”
Defendant raises two issues on this appeal.
(1) Was it reversible error for the court in its instructions to affirmatively exclude jury instructions on the lesser offense of attempted larceny?
(2) Was defendant denied effective counsel because of the representation of both of the defendants by the same attorney?
I
For the first time on this appeal, it is appellant’s claim that the trial court should have instructed on the offense of attempted larceny; appellant cites the applicable statute MOLA § 768.32 (Stat Ann 1954 Rev § 28.1055). We wish to point out that there is no evidence present in this case that would support a verdict of guilty of attempted larceny. The facts appearing in the record are to the effect that the defendants had placed on the truck 23 pieces of one-inch and two-inch diameter copper tubing which were 20 feet long. The only challenge to this evidence was to the effect that not 23 pieces but that not more than seven pieces of tubing, and those mostly the one-inch variety, had been placed on the truck at the time. The fact that the defendant actually failed to make away with the copper tubing does not in any way defeat the charged offense. In 3 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 1798, pp 2143, 2144 it is stated:
“A bare removal, however, from the place in which the respondent found the goods, though he actually does not make away with them, is sufficient to constitute a carrying away.”
Also see People v. Bradovich (1943), 305 Mich 329. It is also true that defendant need not have actually moved the goods himself to have been guilty. In People v. Royce Alexander (1969), 17 Mich App 30, 32, it is stated :
“It is well established that the asportation need not be effectuated by the perpetrator of the crime. It may be accomplished by a confederate or an innocent agent.”
The trial court’s instructions which were satisfactory to defendant’s counsel at trial appear to this Court to be proper. Error in failing to charge on the legally possible included offenses may occur only where the defendant’s theory encompasses such a defense and is supported by some competent testimony. People v. Hoefle (1936), 276 Mich 428. In other words, in order to warrant an instruction, the offense must be included both legally and factually. People v. Carabell (1968), 11 Mich App 519, 524.
In the instant ease, there was no theory advanced by defendant to support a claim that there was an attempted larceny and, further, there is no evidence that would support, in fact, such an instruction. We find no error as to the first issue.
II
It is the appellant’s claim that he was denied the effective assistance of counsel when he had to share assigned counsel with his codefendant who testified and implicated defendant by naming him as a participant in the crime.
The codefendant’s testimony was, in the main, consonant with the positive and convincing testimony of the two police officers who saw the defendants loading the copper tubing, gave chase when they attempted to flee, and caught them within a matter of seconds. The only inconsistencies were (1) that Kenny Fisher was helping him load the copper tubing instead of defendant; (2) that there had been only seven pieces of copper tubing mostly of the one-inch variety loaded at the time they were discovered, i.e., the value of which would be less than $100, and reduce the crime to a misdemeanor (the trial court submitted this issue to the jury); and (3) that they had been drinking heavily and were intoxicated to the extent that the codefendant could not form in his mind an intent to steal. The first inconsistency is of no harm to appellant, taking into consideration the overwhelming evidence of guilt of both the defendant and the codefendant and the testimony of Mrs. Fisher that appellant had told her that “ * * * he walked back around the back of the building on the west side and he seen the officers coming and he laid down in the grass and he hollered to Doug, ‘The police are coming’ ”. This testimony is inconsistent with any recanting or abandoning his part in the crime. The second inconsistency would benefit appellant had the jury found that the number of pieces of tubing had been seven of the small-diameter type, which would have reduced the value of the goods to less than $100 and made the offense a misdemeanor instead of a felony. The third inconsistency would likewise aid appellant, for both the defendant and the codefendant, according to codefendant, consumed large amounts of beer — especially in view of Mrs. Fisher’s testimony stating that appellant told her that he was “stoned” at the time of the offense.
It is difficult to understand how joint counsel in this case, under the undisputed facts, has prejudiced appellant. He fails to point out where the cross-examination of the codefendant would have helped him.
He infers that destroying the credibility of the codefendant might have aided him. It appears to this Court that under the circumstances it would have destroyed any possibility for a verdict of guilty of a misdemeanor or a verdict of not guilty because of intoxication which prevented the defendant from forming in his mind an intent to steal. It is also possible that his trial counsel knew what the answers might be to the unasked questions of which his appellate counsel now insists should have been asked. The procedure followed by trial counsel may have been commendable trial strategy.
The appellant had the perfect right to require the people to prove him guilty and beyond a reasonable doubt. From the record, it appears in this case that the overwhelming evidence satisfied this requirement. There is no evidence in the record to the contrary. The codefendant’s testimony was corroborative with the established evidence to a great extent and to the extent that it was inconsistent, it inured to the appellant’s benefit.
The recent decision of our Court in the case of People v. Dockery (1969), 20 Mich App 201, is dis-positive of this issue. There it is stated in part as follows at pp 209, 210:
“The instant case does not involve one defendant making an exculpatory statement putting most of the blame on the codefendant (Sawyer v. Brough [CA4,1966], 358 F2d 70); nor would it have profited one defendant to attack the credibility of another (People v. Donohoe [1962], 200 Cal App 2d 17 [19 Cal Rptr 454]); nor was cross-examination of witnesses inhibited because of conflicting loyalties (Craig v. United States [CA6, 1954], 217 F2d 355); nor was counsel restricted in final summation because he might injure one defendant by arguing in favor of the others (People v. Donohoe, supra); nor was representation of one defendant imposed on the retained counsel of the others with knowledge of a possible conflict of interest (Glasser v. United States [1942], 315 US 60 [62 S Ct 457, 86 L Ed 680]); and, finally, this case does not involve defenses which are factually inconsistent (People v. Welch [1963], 212 Cal App 2d 397 [28 Cal Rptr 112]). Moreover, at the sentencing hearing there was no indication that the positions of the codefendants were so divergent that their attorney would have been forced to argue for substantially different penalties. State v. Karston (1955), 247 Iowa 32 (72 NW2d 463).
“The only possible source of prejudice disclosed by the record is the fact that Dockery did not testify, while his codefendants did. Yet, standing alone, in a_ record totally barren of any indication of a miscarriage of justice, we deem this point insufficient to warrant reversal.
“The right to effective legal representation is fundamental to criminal procedure. Trial courts preferably should not assign a single attorney to represent multiple defendants. Such an assignment, when for good cause made, will only be allowed where the positions of the defendants are not conflicting. The assignment of counsel is designed to aid a defendant and should not itself become a source of prejudice.”
Affirmed.
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Hopp, J.
On July 8, and July 21, 1965, plaintiffs instituted these suits in the Ingham County Circuit Court. The complaints alleged: (1) that Thomas L. Thomas, driver of the automobile in which plaintiff Steven A. Goodine was injured, was guilty of ordinary negligence, and (2) that Robert L. Thomas, the owner of the automobile which Thomas L. Thomas was driving, was guilty of negligent entrustment. The complaints do not allege that Steven A. Goodine was an employee of either Robert L. Thomas or Thomas L. Thomas at the time of the accident, but paragraph 5 of the complaints does assert the following:
«5. * * * and that on the date of this collision, hereinafter set forth, there was a benefit flowing to the said defendant, Robert L. Thomas from the transportation of plaintiff’s son, Steven A. Goodine, and that a host-guest relationship was not present on the date of the collision and that the past assistance and services given by plaintiff’s son, Steven A. Goodine, to defendant, Robert L. Thomas, and the services on the date of said collision, precludes a social relationship at the time of the collision, hereinafter stated, said transportation being for the use and benefit of defendant, Robert L. Thomas.”
Defendants filed answers which allege that a “guest-passenger relationship” existed between plaintiff Steven A. Goodine and defendant Thomas L. Thomas at the time of the accident. Defendants also set forth two affirmative defenses: (1) that plaintiff Steven A. Goodine “cannot assume the benefits of an alleged employee-employer relationship, without considering himself to be an employee of defendant, Robert L. Thomas, at the time of the accident in question, and therefore, plaintiff’s sole and exclusive remedy must lie under the workmen’s compensation laws of the State of Michigan, and are not before this court”; and (2) that plaintiff Steven A. Goodine “was guilty of negligence causing and/or contributing to his alleged injuries in whole or in part in that he voluntarily assumed a position in the vehicle and knew or should have known of defendant’s driving ability and thereby assumed any and all risks incident thereto.”
Both plaintiffs and defendants demanded trial by jury.
Defendants filed motion for summary judgment. On August 8, 1969, defendants’ motion for summary judgment was granted and plaintiffs have appealed as of right from the order granting summary judgment and dismissing plaintiffs’ complaints.
On hearing the defendants’ motion for summary judgment the trial judge ruled:
“Let the record show that it appears to this court that there is an issue here whether or not there is a relationship of employer and employee, and that this is a matter that is to be determined by the work men’s compensation department. For this reason, I am going to grant the motion.”
In their motion for summary judgment the defendants state:
“1. That plaintiff alleges that at the time of the accident in question, Steven A. Goodine was employed hy the defendant, Robert L. Thomas, and was a co-employee of the defendant, Thomas L. Thomas.” (Emphasis added.)
This is an inaccurate statement. Apparently defendants consider plaintiffs’ allegation as set forth in paragraph 5 of the complaints “(that) there was a benefit flowing to said defendant, Robert L. Thomas, from the transportation of plaintiffs’ son * * * and * * * said transportation being for the use and benefit of defendant * * * ” as tantamount to an allegation that plaintiffs’ son was an employee of the defendant at the time he was injured. We find no Michigan authority supporting this position.
Here, indeed, is a strange situation. Plaintiffs do not allege an employment relationship in their complaints. Defendants do not allege an employment relationship in their answers; rather in paragraph 4 of the answer defendants allege that Steven A. Goodine was a guest passenger. It is true that defendants’ motion for summary judgment assumes the existence of an employer-employee relationship but as stated above this is an erroneous assumption and completely unwarranted from the pleadings.
The pleadings make it clear that the relationship between the parties at the time of the accident is a disputed question of fact requiring determination and resolution by jury trial pursuant to demand therefor timely filed by plaintiffs.
The trial court’s decision granting defendants’ motion for summary judgment (or accelerated judgment as the case may be) is reversed and the case is remanded to the trial court for further proceedings.
All concurred. | [
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Quinn, P. J.
Defendants appeal from judgments entered on jury verdicts in favor of the individual plaintiffs. The theory of plaintiffs’ action was that the negligence of defendants caused the sanitary sewer system of defendant city to back up and flood their basements which resulted in personal injury and property damage to each plaintiff.
Plaintiffs gave defendant city timely written notice of their intent to hold the city liable for their damages, as required by the city charter. However, plaintiffs’ bill of particulars and amended bill of particulars listed items of damage not specified in the written notice. By motion for summary judgment pursuant to GCR 1963, 117.2(1), defendants sought to preclude plaintiffs from claiming damages for any items of damage not specified in the written notice on the theory of noncompliance with the charter provision requiring written notice of claim. This motion was denied; at the close of plaintiffs’ proofs, the motion was renewed and it was again denied.
The first error asserted by defendants on appeal is the denial of this motion. They argue that because the charter required the written notice to set forth “the extent of the injury so far as known”, plaintiffs’ damages must be confined to the items'of damage specified in the notice. In support of this argument, defendants cite Ridgeway v. City of Escamaba (1908), 154 Mich 68, and Overton v. City of Detroit (1954), 339 Mich 650. Both decisions are inapposite. The notice in Ridgeway as to extent of injury was wrong in fact, and Overton did not involve a notice of extent of injury question.
Substantial compliance with the charter requirements in respect to notice is sufficient, Meredith v. City of Melvindcde (1969), 381 Mich 572. Here the question of substantial compliance can only be determined after it is determined why plaintiffs claimed items of damage in addition to those items specified in their written notice of claim. Were additional claims made to punish defendant city because it denied plaintiffs’ claims, as defendants argue? Were the added claims undiscoverable at the time of the notice? Were they merely overlooked? This is the type of factual question not resolvable on motion for summary judgment because reasonable men could honestly reach different conclusions, Beardsley v. R. J. Manning Company (1966), 2 Mich App 172. It was not error to deny summary judgment.
Defendants contend there is not sufficient evidence to support a finding of negligence. This question was not saved for review. There was no motion for new trial, Watson v. Dax (1952), 334 Mich 320.
Affirmed with costs to plaintiffs.
All concurred. | [
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R. B. Burns, P. J.
The defendants appeal from a jury verdict awarding plaintiff $20,428.40 plus 40% of any and all sums which defendants might in the future receive from the United States Foreign Claims Settlement Commission.
Plaintiff brought this suit to enforce a written agreement between her and defendant Norma Joffo. By the terms of the contract plaintiff agreed to give Norma Joffo certain documents and letters in plaintiff’s possession and to execute affidavits setting forth her knowledge of David Paul Joffo’s investment in a plywood factory in Riga, Latvia. In return, Norma Joffo agreed to prosecute her deceased husband’s claim before the settlement commission and, in the event of an award, it was agreed that Norma Joffo would pay plaintiff 40% of the sum awarded.
Before his death, David Joffo had pursued a claim with the settlement commission for the loss of his interest in a plywood factory which was allegedly destroyed in Riga, Latvia. Plaintiff’s father, now deceased, who had managed David Joffo’s business affairs in Europe, began liquidating Joffo’s European assets prior to World War II. The plywood factory could not be liquidated before its confiscation and dismantlement by the German army.
After the war, and during David Joffo’s attempts to recover from the settlement commission for the loss of the factory, Joffo left certain items of correspondence with plaintiff for the purpose of refreshing her memory about certain details of the plywood factory.
After her husband’s death, Norma Joffo decided to continue prosecuting the claim before the settlement commission. In order to recover on the claim defendant had to prove the factory’s existence, David Joffo’s interest therein, and finally the factory’s destruction by the German army.
It soon became evident to Mrs. Joffo that she would need plaintiff’s cooperation in order to recover from the commission. Plaintiff, in addition to her personal knowledge of details concerning the plywood factory, had in her possession certain documents and letters of correspondence given to her by David Joffo, all of which tended to prove the existence of the plywood factory and David Joffo’s interest.
The plaintiff refused Norma Joffo’s request for the letters and other documents, but, after negotiations with Mrs. Joffo’s attorney, plaintiff entered into the contract she now seeks to enforce. It is undisputed that the $77,000 award from the settlement commission was largely a result of plaintiff’s performance of her part of the contract.
At trial the judge refused to grant defendants’ motion for a summary judgment. Defendants claim that the motion should have been granted since the contract was against public policy and therefore unenforceable.
An agreement to pay a witness amenable to process compensation contingent on the results of a case, is, as a general rule, contrary to public policy. However, it has been held that an agreement to furnish information in the possession of one of the parties, for a share in the recovery, is not invalid. Kaplan v. Suher (1926), 254 Mass 180 (150 NE 9). It has also been held that the making of an affidavit for a contingent compensation, which is a voluntary act and one which an affiant cannot be compelled to do, is not invalid as being against public policy. Thatcher v. Darr (1921), 27 Wyo 452 (199 P 938).
In the present case the plaintiff was a resident of the country of Prance. The agreement provided that she should turn over to the defendant documents in her possession and execute affidavits to be used before the commission, for a share of the award. The contract was not against public policy and was valid.
Defendants claim the trial court erred by granting the plaintiff’s motion to strike the defendants’ affirmative defense of duress. G-CR 1963, 111.7 reads in part:
“Affirmative Defenses. A party shall in separate defenses set forth the facts constituting any affirmative defense, such as, * * * duress, * * * .”
Plaintiff moved to strike the affirmative defense on the ground that the allegations stated, even if proved, did not state a prima facie case of duress. The correct motion would have been a motion for summary judgment under GrCB 1963, 117.2(2) on the ground that the opposing party had failed to state a valid defense.
The trial judge granted the motion to strike the affirmative defense on the ground that the facts as pleaded, even if true, did not state a valid defense.
In Knight v. Brown (1904), 137 Mich 396, 398, the Court, quoting Hackley v. Headley (1881), 45 Mich 569, stated:
“ ‘Duress exists when one, by the unlawful act of another, is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will.’ ”
In Payne v. Cavanaugh (1940), 292 Mich 305, 308, the Court stated:
“Duress will not prevail to invalidate a contract entered into with full knowledge of all the facts, with ample time and opportunity for investigation, consideration, consultation, and reflection.”
The agreement in question was prepared by the defendants’ attorney and signed with full knowledge of all the facts. The motion, though improperly labeled, was properly granted and did not prejudice the defendants. In addition, defendants did not move to amend their answer or take any steps to correct the defect.
Lastly, the defendants claim that the trial court erred by refusing to give two requested instruc tions. Both requested instructions dealt with the question of consideration and were questions of law for the court to decide.
Affirmed. Costs to plaintiff.
All concurred.
The Foreign Claims Settlement Commission was created to decide what, if any, compensation American citizens would receive for the loss of real property resulting from military operations in parts of Europe during World War II.
Plaintiff’s father was David Joffo’s cousin.
Plaintiff and David Joffo were very close and it is undisputed that he intended to provide for plaintiff after his death by giving her a considerable portion of any settlement he might receive from the settlement commission. | [
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Per Curiam.
Plaintiffs were back-seat passengers in an accident which occurred on October 23, 1967. The jury determined that the drivers of both of the automobiles in the accident were negligent. Plaintiffs appeal, however, contending the verdict of the jury was, as to both plaintiffs, inadequate.
At the trial, plaintiff Dorothy Jackson proved that her out-of-pocket damages were $50.15. Tim Jackson’s out-of-pocket expenses were at least $263.03. The jury returned a verdict of $29 for Dorothy Jackson and $136 for Tim Jackson. Plaintiffs contend the two awards are clearly inadequate since they do not even compensate plaintiffs for their out-of-pocket expenses.
A jury verdict may not ignore uncontroverted out-of-pocket expenses. Ross v. Richardson (1970), 29 Mich. App 110. A jury verdict which does ignore such out-of-pocket expenses is inadequate and must he reversed:
“A jury award which ignores uncontroverted out-of-pocket expenses is inadequate on its face. Hugener v. Michlap (1966), 2 Mich App 157; Whitson v. Whiteley Poultry Co. (1968), 11 Mich App 598. So too, an award which ignores pain and suffering is also inadequate. Fordon v. Bender (1961), 363 Mich 124.”
Since the award in the instant case is less than plaintiffs’ out-of-pocket expenses, the case must he reversed and remanded for a new trial as to damages only.
Plaintiffs also contend that the introduction of Tim Jackson’s “Employees Personal Record.” kept by Mr. Jackson’s employer (defendant’s Exhibit A) and the record kept by the medical department of his employer (defendant’s Exhibit B) was error in that certain matters contained therein were prejudicial.
Exhibit A was Mr. Jackson’s foreman’s record on Jackson which was made in the ordinary course of business. Exhibit B was an employee medical record on Tim Jackson. Both records contained numerous references to back trouble which Mr. Jackson had complained of. Since both records were made in the ordinary course of business, they should be admissible under the business records exception to the hearsay rule. MCLA § 600.2146 (Stat Ann 1962 Rev § 27A.2146).
Plaintiffs contend on appeal that the records prejudiced the jury against Mr. Jackson because they contained references to venereal disease and profane language. However, plaintiffs’ objections be low were based upon hearsay and irrelevance. Since the records were certainly relevant due to the many references to prior back injuries and were admissible as business records, the trial court was correct in admitting them. We will not consider plaintiffs’ contention that they were prejudicial since the issue was not raised below, and because on retrial the alleged prejudicial material can be eliminated, if any is found by the trial court, by a motion to restrict or qualify the jury’s consideration of the evidence.
Reversed and remanded for a determination of damages only.
Cooper v. Christensen (1970), 29 Mich App 181, 184.
See Rottman v. Township of Waterford (1968), 13 Mich App 271, 273, 274; Pfeiffer v. Haines (1948), 320 Mich 263. | [
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Quinn, P. J.
By this action, plaintiffs sought to restrain defendant from interfering with their property. The alleged interference arose when defendant notified plaintiffs to remove a fence, trees, and shrubs that obstructed a platted alley which was not opened until 1962. From the judgment entered by the trial court, plaintiffs appeal.
Plaintiffs’ property is described as the west 40 feet of lots 24 and 25 of Bray’s addition to the village of Mt. Morris. The plat of Bray’s addition was approved September 13, 1909, and recorded December 24, 1909. The streets and alleys in the plat were dedicated to the use of the public. According to the plat, the east line of a north and south 15-foot alley was the west line of lots 24 and 25, but prior to 1962, this alley was unopened and was blocked by trees and underbrush.
Plaintiffs purchased their property in 1944, at which time it was enclosed by a fence. The record indicates this fence was erected about 1926.
For the purpose of installing a sanitary sewer, defendant opened the alley in 1962. Prior to the opening, defendant conducted a survey to locate the alley. This survey disclosed that the actual distance on the ground exceeded the measurements on the plat by approximately 5-1/2 feet. In locating the alley, the surveyor apportioned this excess equally to the property on each side of the alley. As thus located, the east line of the alley came within 1-1/2 feet of plaintiffs’ house and the fence on their west line protruded into the alley about 1-3/4 feet.
The theory of plaintiffs’ action was that the alley was never accepted by defendant; if accepted, it was abandoned; and that the alley defendant sought to establish was improperly located.
The record is devoid of proof that between 1909 and 1962, the defendant ordered the opening of the alley or exercised any authority over it by way of improvement or regulation. See Tillman v. People (1864), 12 Mich 401. A serious question could have been raised in 1962 with regard to acceptance within a reasonable time. No question was raised then and a sanitary sewer is now located in the alley. Any issue as to acceptance or abandonment was thus resolved. See Olsen v. Village of Grand Beach (1937), 282 Mich 364.
The issue of proper location of the alley presents a different problem. In approving the apportionment of the excess land by the surveyor in the process of locating the alley, the trial court recognized the rule of possession limitation on the apportionment doctrine, as expressed in Anderson v. Wirth (1902), 131 Mich 183. However, the trial court distinguished Anderson because a municipality was involved in the case at bar, and as an individual cannot obtain rights by adverse possession against a municipality, the possession limitation was inapplicable.
This reasoning was erroneous. The possession limitation is not founded on adverse possession but rather on the inequity of disturbing long-established occupational lines on the basis of recent surveys. It can be argued that defendant recognized the latter principle by the alley it opened in 1962. The east line of that alley made a jog around the obstruction that defendant ordered plaintiffs to remove in 1968. The alley has been so used since 1962 and it remains usable in its present form, even though it is 1-3/4 feet narrower than the platted 15-foot alley.
Reversed and remanded for entry of a judgment enjoining defendant from disturbing the existing west line of plaintiffs’ property with costs to plaintiffs.
All concurred. | [
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Lesinski, C. J.
Defendant was charged with the sale and possession of marijuana and was subsequently convicted by jury of illegal possession of that drug. MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123). In an earlier opinion, we dealt with defendant’s allegation that the statutory “180-day” rule had been violated. MCLA §§ 780.131, 780.133 (Stat Ann 1970 Cum Supp §§ 28.969[1], 28.969[3]). Mindful of the requirement that the prosecutor must begin good faith action against an accused already in the custody of the Department of Corrections on another sentence within 180 days from the time the prosecutor receives notice of the accused’s incarceration, People v. Hendershot (1959), 357 Mich 300, and concerned that the prosecutor’s lack of diligence in transporting defendant from the State Prison of Southern Michigan at Jackson, Michigan, to court on several occasions (thus causing several delaying adjournments) had a direct bearing on the prosecutor’s good faith in bringing defendant to trial, we remanded the cause to the trial court for the making of a testimonial record for the purpose of permitting the trial court to redetermine the prosecutor’s alleged violation of the “180-day” rule. This record on remand has been completed and we are now prepared to pass upon this and other assignments of error presented by defendant.
The statute does not require actual trial within the 180-day period, but only the taking of good faith action within that period by the prosecution to begin the process and the prosecution’s proceeding promptly towards readying the case for trial. People v. Hendershot, supra, 304. Thus, the test of whether the statute has been violated is whether the prosecutor has taken good faith action within the statutory period and the continued good faith in bringing the case to trial.
In People v. Castelli (1963), 370 Mich 147, the prosecutor’s obtaining of a writ of hateas corpus to bring the accused before a magistrate for preliminary examination within the 180-day period was held to be such good faith action as to satisfy the mandates of the statute. Similarly, in People v. Loney (1968), 12 Mich App 288, we held that the prosecutor’s moving for nolle prosequi and issuing a new complaint and warrant within the statutory period preserved the jurisdiction of the trial court under the statute. Holding a preliminary examination within the 180 day period constitutes the taking of good faith action by the prosecution to start the proceedings in motion. People v. Linscott (1968), 14 Mich App 334.
The record on remand below shows that a warrant for defendant’s arrest was issued on January 23, 1967, and defendant was arraigned thereunder on January 27, 1967. Preliminary examinations were scheduled for February 1, 1967, and February 2, 1967, hut were adjourned because defendant’s co-defendants were unable to obtain counsel. A preliminary examination set for February 15,1967, was adjourned because defendant had not been brought to the examination and remained in Jackson Prison. The next preliminary examination was to he heard on February 27,1967, hut the prosecution requested an adjournment since one of the principal witnesses was an undercover agent engaged in secret police work and was unavailable on that date. The preliminary examination was finally held on March 6, 1967; defendant was hound over for trial. It is to be noted here that the prosecutor thus set the criminal process in motion well within the statutory 180-day period.
On May 16, 1967, the prosecution filed the information against defendant and defendant was to he arraigned on the information on May 27, 1967. However, on that date defendant’s attorney failed to file an appearance, apparently because defendant was having financial difficulty. The arraignment was postponed until June 8, 1967, when the prosecution again failed to cause defendant to be transported from Jackson Prison to court. It was about this time when the court records were erroneously made to reflect defendant’s arraignment on the information.
The prosecution set a trial date for August 2, 1967. However, the City of Detroit became embroiled in a massive civil disorder from July 23 through July 26; the effect of this civil disturbance upon the trial courts of the metropolitan Detroit area was to inundate the courts with thousands of additional cases. Because of the paralyzing effect of this onerous judicial workload, the August 2, 1967 trial date was quite reasonably adjourned until September 18, 1967. On this latter date, the prosecution again failed to have defendant escorted from Jackson Prison to court; the trial was adjourned until November 13,1967. On that date, however, defendant’s attorney pointed out that, despite court records to the contrary, defendant had never been arraigned on the information. One week later, on November 20, 1967, defendant presented motions involving questions of entrapment and indorsement of a co-defendant, Thomas Medina, as a res gestae witness. A trial date of December 10,1967, had been set when the trial date of November 13, 1967, was utilized as an arraignment date. On December 10, the matter was adjourned again since the trial judge to whom the case had been assigned was out of town on vacation. A February 19,1968 trial date was scheduled. However, on that date defendant requested an adjournment until March 27, 1968, to obtain Medina as a witness; Medina was in fact reached by defendant by way of a writ of habeas corpus. On March 27,1968, a jury was selected; voir dire continued until March 28,1968. On this date, trial began.
As a result of the above testimony, the trial court concluded on remand that, as a matter of fact, the prosecution commenced action against defendant in good faith within 180 days and proceeded to trial in good faith thereafter. We are unable to disagree with this determination. The record reveals that several of the delays in the proceedings below were attributable to the prosecution’s lack of diligence in securing the attendance of defendant in court. As our earlier opinion indicates, it is the duty of the prosecution to see that a prisoner serving a sentence in a corrective institution on another charge be brought before the court to answer a present charge. Nevertheless, in the case before us, the prosecution did initiate action against defendant within the statutory period. The proceedings below moved eventually and consistently towards trial even though impeded by repeated delays, some of which were attributable to the prosecution, some which were due to moves made by defendant, and some which were beyond the control of anyone. The fact that some of the delays were occasioned by adjournments requested by the prosecution does not necessarily preclude a finding that the prosecution moved in good faith towards trial. See Kelley v. Kropp (CA 6,1970), 424 F2d 518.
Second, defendant complains of the trial court’s excusing a venireman for cause after the venireman had indicated that she did not feel she could fairly serve on the jury and of the trial court’s refusal to allow defense counsel on voir dire to fully examine the venireman so as to ascertain specifically what the venireman’s reasons were for wishing to be excused. It is not a commendable practice for trial judges to excuse a venireman without permitting detailed inquiry into the bias a venireman indicates he possesses. Veniremen should not he relieved of their duty unless good cause is demonstrated upon an adequate investigation into the matter. A trial judge has wide discretion as to the scope of examination of veniremen on voir dire. OCR 1963, 511.3; People v. Lockhart (1955), 342 Mich 595. It would have been more appropriate for the court to determine specifically whether the reasons the venireman had were grave enough to warrant dismissal. However, the trial court sensed that these reasons were highly personal to the venireman, and, in its discretion, refusing to subject the venireman to searching voir dire questioning. Under the circumstances of this case, we find no abuse of discretion in this regard.
Similarly, defendant attempts to persuade us that the trial court erroneously excluded another venireman for cause when the venireman advanced an opinion that marijuana was not a dangerous drug, and, as a result, she would have difficulty enforcing the drug laws. Defendant analogizes to Witherspoon v. United States (1968), 391 US 510, 522 (88 S Ct 1770, 1777, 20 L Ed 2d 776, 784, 785), which held “that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”
We do not find Witherspoon to be controlling in the case before us. The United States Supreme Court has declined to extend the application of Witherspoon to cases other than those which involve the death penalty. Boulden v. Holman (1969), 394 US 478, 483, 484 (89 S Ct 1138, 1141, 22 L Ed 2d 433, 438, 439), indicates that the Witherspoon rationale does not, as yet, affect cases where veniremen who are opposed to penitentiary, noncapital punishments are excluded from jury service:
“As the initial portion of this colloquy and that set out in footnote 6 indicate, Alabama law also authorizes the exclusion of any potential juror who has a ‘fixed opinion against * * * penitentiary’ punishment. Ala Code, Tit 30, § 57. Two veniremen were excused when they merely responded affirmatively to the disjunctively phrased question whether they had ‘a fixed opinion against capital or penitentiary punishment.’ It is thus not possible to discern from the record which type of punishment they objected to, although the more likely assumption would he that it was capital punishment. We did not in Witherspoon pass upon the validity of the ‘penitentiary’ analogue to death-qualification of jurors, and we intimate today no opinion regarding that question.” (Emphasis supplied.)
The trial judge entertained serious doubts as to whether the venireman would have been able to render a verdict consistent with the drug laws as written if the facts as elicited indicated a violation of those laws. A review of the record convinces us that the trial court’s concern that this venireman’s distaste for the drug laws would have influenced her decision was indeed legitimate and well-founded. G-CR 1963, 511.4(5) permits a prospective juror to he challenged for cause when that person has opinions or scruples which would improperly influence his verdict. Further, a Michigan statute, MCLA § 768.10 (Stat Ann 1962 Rev § 28.1033), provides as follows:
“The previous formation or expression of opinion or impression, not positive in its character, in reference to the circumstances upon which any criminal prosecution is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in reference thereto, such opinion or im pression not being positive in its character, or not being based on personal knowledge of the facts in the case, shall not be a sufficient ground of challenge for principal cause, to any person who is otherwise legally qualified to serve as a juror upon the trial of such action: Provided, That the person proposed as a juror, who may have formed or expressed, or has such opinion or impression as aforesaid, shall declare on oath, that he verily believes that he can render an impartial verdict according to the evidence submitted to the jury on such trial: Provided further, That the court shall he satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror.” (Emphasis supplied.)
Defendant’s right to an impartial jury does not encompass the right to a juror who would find it difficult to convict defendant under any circumstances. See People v. Bigge (1941), 297 Mich 58, 64, 65.
Next, we are told that the admission of testimony of an undercover police agent as to an inculpatory statement made by one of defendant’s co-conspirators, Thomas Medina, is violative of the principles enunciated by Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476). Bruton held that the admission of a co-defendant’s confession in a joint trial violated an accused’s constitutional right of cross-examination as secured by the confrontation clause, despite the trial court’s giving of a limiting instruction to the jury that it ought not to consider such extra-judicial statements against a nondeclarant. In the case at bar, the police officer testified that Medina told him that the former would not be able to obtain the drugs until later that evening. This statement was made before the ends of the criminal conspiracy had been completed but defend ant was evidently ont of earshot when Medina uttered the statement.
It is well-established that hearsay declarations of co-conspirators, uttered prior to the completion of the conspiracy and in the furtherance of the common unlawful enterprise, are admissible against all of the co-conspirators. People v. Nankervis (1951), 330 Mich 17; People v. Lohn (1970), 21 Mich App 235. Further, the Bruton decision itself limits its holding to those situations where the statement sought to be admitted is one which is inadmissible under the traditional rules of evidence; the Court declined to extend Bruton where a recognized hearsay exception is involved. Bruton v. United States, supra, footnote 3, 391 US at 128 (88 S Ct at 1623, 1624, 20 L Ed 2d at 480, 481). See, also, Dutton v. Evans (1970), 400 US 74 (91 S Ct 210, 27 L Ed 2d 213); Campbell v. United States (CA 6, 1969), 415 F2d 356; People v. Kelley (1971), 32 Mich App 126.
Kay v. United States (CA 9, 1970), 421 F2d 1007, is substantially similar to the case before us. In that case, a prosecution for sale of drugs, a police agent testified that defendant’s co-conspirator told him that drugs offered for sale were of good quality and from Mexico. The Court held that pre-arrest declarations of a co-defendant made in the prosecution of a common scheme were admissible since Bruton does not preclude the admission of such statements. As such, we hold that the admission of the testimony of the police officer did not violate defendant’s right to confront witnesses.
Defendant’s contention that the trial court’s refusal to submit lesser, included offense instructions to the jury as to attempted sale and attempted pos session of marijuana is also without merit. As was well stated in People v. Stevens (1968), 9 Mich App 531, 533, 534:
“Where a request has been made to charge on a lesser included offense, * * * the requested instructions must be given; failure to do so would constitute error. People v. Jones (1935), 273 Mich 430. If, on the other hand, no evidence has been presented to support a conviction of the lesser offense, then the requested instruction should be refused. People v. Utter (1921), 217 Mich 74; People v. Hearn (1958), 354 Mich 468.”
While the prosecution introduced much evidence linking defendant with the commission of the completed crime, defendant advanced no evidence compatible with the lesser offenses. The trial judge correctly declined to give the requested instructions.
Finally, defendant assigns as error the trial court’s refusal to instruct the jury that, as the trier of fact, it is the ultimate arbiter of the credibility of a witness and that, in this function, it may refuse to believe and disregard the whole, or any part, of a witness’s testimony. It is fundamental that jury instructions must not be isolated and must be read in their entirety; a trial judge may properly refuse to instruct as requested when he has essentially given the charge in his own words. People v. Iron (1970), 26 Mich App 235; People v. Mayberry (1970), 25 Mich App 677. We find that the' charge which defendant contends should have been given was, in fact, essentially covered by the trial judge when he instructed that:
“Now, this is so, members of the jury, because the credibility of all witnesses is for you to decide. You are the sole judges of credibility of the witnesses sworn here in open court before you, and of the weight to be given their testimony.
“Now, members of tbe jury, a credible witness is one wbo gives competent testimony worthy of belief. In determining the credibility of the witness, you may consider his conduct, manner and bearing on the witness stand, his interest in the outcome of the case, his opportunity to know and remember the events about which he testifies, his willingness to speak the truth and all the surrounding circumstances that show his willingness to testify to the truth, and his reliability or unreliability, his apparent fairness or want of fairness, the fact of whether the witness has been corroborated or contradicted by other witnesses, the probability or improbability of the truth of the statements that he makes in view of all the other evidence and the other facts and circumstances apparent in the trial.”
Finding no error, we affirm. Bond is hereby can-celled and defendant is ordered remanded to serve the sentence imposed.
Affirmed.
All concurred.
21 Mich App 524.
However, this does not mean that the prosecutor may eommenee the ei'iminal process within the period required by the statute and may thereafter take whatever time he desires to advance the case to trial. People v. Sendershot (1959), 357 Mich 300, 303, 304, notes: “If some preliminary step or action is taken, followed by inexcusable delay beyond the 180-day period and an evident intent not to bring the case to trial promptly, the statute opens the door to a finding by the court that good-faith action was not commenced as contemplated by section 3, thus requiring dismissal.” This is not the situation in the instant case.
Defendant’s attorney caught this error on November 13, 1967, and defendant was finally arraigned on that date.
Fn 7 of the Court’s opinion. Boulden, supra.
It appears that the juror volunteered her opinion about the drug laws when the trial court asked the jurors if they could enforce the drug laws.
GCE 1963, 785.1, extends the court rules to criminal cases.
Medina was originally scheduled to be tried jointly with defendant but pleaded guilty to a lesser included offense. See People v. Shirk (1970), 383 Mich 180. | [
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Fitzgerald, P. J.
On February 18, 1970, Vernon A. Sharp, defendant, was arrested and charged with sale of narcotics, a violation of MCLA § 335.152 (Stat Ann 1957 Rev § 18.1122). Subsequently, on March 13, 1970, while represented by counsel, defendant entered a plea of guilty to an added second count of possession of narcotics, a violation of MCLA § 335.153 (Stat Ann 1957 Rev §18.1123). On May 15, 1970, he was sentenced to serve nine to ten years in prison. Defendant now appeals of right from an order of the trial court denying his motion to withdraw the plea.
The only question raised on this appeal is whether the trial court complied with the requirements of taking a guilty plea, as set forth in Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274). Specifically, we are concerned with the trial court’s failure to advise defendant of his privilege against compulsory self-incrimination.
The Michigan Supreme Court recently addressed itself to an interpretation of the Boykin requirements in People v. Taylor (1970), 383 Mich 338, 355, 356, which stated:
“The Court did not say, as some have suggested, that explicit and expressed waivers must be taken upon each of these constitutional rights before the plea can be accepted.
“The holding is more properly that these rights are waived by the act of entering the guilty plea, and it is for this reason that a record must be made upon the question of voluntariness.”
The same reasoning and interpretation was also applied by this Court in People v. Jaworski (1970), 25 Mich App 540.
Therefore, in light of the above decisions as well as the record made in the taking of the present guilty plea, we conclude that defendant’s plea was voluntarily and understandingly made. The failure of the trial court to mention the privilege against self-incrimination was not fatal.
Affirmed.
Holbrook, J., concurred. | [
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] |
Bronson, P. J.
Plaintiffs, Township of Erie and Township of LaSalle, are located in the County of Monroe, which is one taxable unit consisting of 19 assessing districts. During the years 1967, 1968, and 1969, the plaintiff townships both had equalization factors of 1.000000. Following a study of five townships in the county in early 1970, the Monroe County Board of Commissioners adopted the equalization report of the County Equalization Director and established new equalization factors applicable to plaintiffs. Plaintiff Erie Township was assigned a new and higher equalization factor of 1.167568 and a new and higher factor of 1.247041 was assigned to plaintiff ■ LaSalle Township. As stated above, only five townships were studied, and no adjustment in the equalization factor was made for any of the assessing districts which were not studied.
In May, 1970, plaintiffs requested review by the State Tax Commission concerning the equalization of Monroe County. The State Tax Commission requested the plaintiffs to file substantiation of their allegations of discrimination. Additional information was submitted by the plaintiffs. The State Tax Commission considered the appeals at a meeting on June 3, 1970. The commission then decided that there was no statistical data submitted by the plaintiffs indicating that any inequity was brought about because of the new equalization factors. The commission concluded that the plaintiffs’ complaint was based upon unsupported allegations that the equalization surveys were of insufficient frequency countywide. Also, the commission found that no factual basis of erroneous valuation existed. On the basis of these findings, the commission adopted a resolution denying plaintiffs’ appeal and affirming the equalization of Monroe County.
Plaintiffs contend that the State Tax Commission did not comply with MCLA § 211.34 (Stat Ann 1970 Cum Supp § 7.52), because the commission did not hold a hearing as requested by the plaintiffs. The defendant contends that under the statute a hearing is discretionary with the State Tax Commission and, in view of its findings, no abuse of discretion occurred by denying a hearing. We agree with the defendant’s interpretation of the statute.
MCLA § 211.34 (Stat Ann 1970 Cum Supp § 7.52) provides for equalization by counties. The appeal procedure to the State Tax Commission is also contained there. It provides in part:
“The state tax commission shall, upon receipt of the petition, forthwith examine same, and if in its judgment there is a showing to the effect that the equalization complained of is unfair, unjust, inequi table or discriminatory may proceed at once to make an investigation of the matters set forth in the petition. # * * If the state tax commission shall decide that the determination and equalisation made by the board of supervisors is correct, no further action shall be taken. In case the state tax commission shall determine that the equalisation made by the board of supervisors is unfair, unjust, inequitable or discriminatory, the state tax commission shall notify by mail the supervisor who has appealed, as well as each member of the board of supervisors and board of education, if the board, has appealed, together with notice of the time and place of hearing.” (Emphasis added.)
Thus, by statute, the commission has the power to consider the information provided, and if it decides that there has been an unjust, unequal, or discriminatory equalization by a county, it must then hold a hearing. However, if the commission decides upon the basis of the filed petition that there has not been an unjust, unequal, or discriminatory equalization, then no further action need be taken. See Krawood, “Michigan’s Need for a Tax Court and the Inadequacy of Appeal Procedures Provided by the General Property Tax Law”, 11 Wayne L Rev 508, 519, 520 (1965).
Plaintiffs, relying on Titus v. State Tax Commission (1965), 374 Mich 476, contend that they had a right to a hearing before the State Tax Commission. However, Titus differs from the instant case in a number of ways, not the least of which is the fact that the Court in Titus was faced with the problem of assessment, not equalization, and was concerned with MCLA § 211.152 (Stat Ann 1960 Rev § 7.210), which requires a hearing, and not MCLA § 211.34 (Stat Ann 1970 Cum Supp § 7.52), which does not.
The basis for appellate review of decisions from the State Tax Commission regarding equalization was set forth in Barnes v. Board of Supervisors of Wayne County (1917), 194 Mich 540, 549, 550:
“Acting within the scope of its power snch action may be said to be almost plenary. Whether this statute is wise or not, is matter for legislative, rather than judicial, consideration.
“It should be held that the board having obtained jurisdiction, and having acted, such action should be deemed final, in the absence of fraud.”
See School District No. 9, Pittsfield Township, Washtenaw County, v. Washtenaw County Board of Supervisors (1954), 341 Mich 388, 405; Auditor General v. Wayne County Supervisors (1921), 216 Mich 256; McDonald v. City of Escanaba (1886), 62 Mich 555. See, also, Const 1963, art 6, § 28; Krawood, supra, p 520.
Plaintiffs argue that the decision of the State Tax Commission which upheld the equalization constituted constructive fraud and error of law. The defendant contends that plaintiffs’ arguments are merely conclusions since there had been no factual showing that the equalization was unfair, unjust, or discriminatory.
Plaintiffs once again rely on Titus to support their position. In addition to the differences previously mentioned between Titus and the instant case, we note that in Titus it was an established fact that the property of the appellant was assessed at 40% of true cash value and other property in the taxing unit was assessed at 37% or 38% of its cash value. In the instant case, there is no such proof in the record. In short, the plaintiffs have failed to establish on the record before this Court facts which would support their conclusions that the deci sion of the tax commission to uphold the equalization constituted fraud or error of law.
For the above-mentioned reasons, the decision of the State Tax Commission is affirmed. No costs, a public question being involved.
All concurred. | [
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Per Curiam.
The plaintiffs sought reformation of a quitclaim deed or, alternatively, damages. The trial court granted the defendants’ motion for accelerated judgment on the basis that no verbal agreement was completed, and the deed did not comply with the statute of frauds, MCLA § 566.101 et seq. (Stat Ann 1970 Rev § 26.901 et seq.). Plaintiffs appeal as of right to this Court.
There were preliminary discussions between Mr. Baker and Mr. Glander regarding the purchase from an estate of 120 acres in Antrim County. They agreed that Mr. Baker would pay the total purchase price of $7,000 and that he would get in return the east 60 acres, valued by the parties at $3,500, and a promise from Mr. Glander to either pay Mr. Baker $3,500 or to “work it off”.
On Thursday evening, December 18, 1969, the Glanders took a quitclaim deed drafted by their lawyer and went to the Bakers’ house. The deed was for the east 60 aeres of the parcel involved, but the consideration stated was $7,000. Mrs. Baker questioned the fact that there was nothing in writing to show that the Glanders owed them $3,500, and Mr. Baker called his attorney and asked him to draft a promissory note the next day. Mrs. Baker wrote out a check for $7,000 and signed it. However, when the Glanders didn’t know what the executrix’s name was, they left the payee blank and kept the check. It was understood that Mrs. Glander would stop by the next day and tell her the name to write in. The deed was left with the Bakers.
About 9 a.m. Friday, December 19, 1969, Mrs. Glander went to the plaintiffs’ house to tell them the executrix’s name. Mrs. Baker had gone to the grocery store and when Mr. Baker, not realizing that his wife had already signed the check, told Mrs. Glander this, she said she had a doctor’s appointment and had to leave hut would come hack later that day to pick it up. She did not return.
Mr. Baker then went to his attorney’s office to get the promissory note. After some discussion, his attorney drafted a warranty deed and a land contract which Mr. Baker took to the Glanders that evening. Mr. Glander refused to look at them and told Mr. Baker he’d have to deal through his attorney. Four days later Mr. Glander called Mr. Baker and told him the deal was off because he had found another guy who would give him a thousand dollars more. Mr. Campbell was the new purchaser. This lawsuit followed.
We agree with the trial judge that these facts do not show a meeting of the minds of the parties on the verbal agreement. While the Glanders apparently intended to deliver the deed on December 18,1969, the facts do not show an acceptance of it. Accord ing to Kroll v. Diamond Match Co. (1897), 113 Mich. 196, the tender of a deed, pursuant to a written offer, does not, with or without a prior oral acceptance, complete a contract for the sale of land complying with the statute of frauds. No consideration was paid, nor was the check ever actually tendered.
Assuming an oral agreement did exist, it is admitted by the plaintiffs that the deed did not conform to it. A deed which does not conform to an oral agreement is not a sufficient memorandum to avoid the statute of frauds. Kelsey v. McDonald (1889), 76 Mich 188. Under GCR 1963, 116.1(5) and the decision in the Kelsey case, the trial court properly dismissed the case.
Affirmed. Costs to appellees. | [
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Per Curiam.
Defendant appeals a jury conviction of the offense of larceny from the person. MOD A § 750.357 (Stat Ann 1954 Rev § 28.589). The people move to affirm.
The complainant testified at the trial that the following items were taken from him:
“1. A black leather wallet containing pictures of his wife and children and some identification papers.
“2. A used Zippo lighter.
“3. A1950 Time Capsule book.
“4. A paperbag containing crackers, sardines, and Budweiser beer.
“5. About 1/2 pack of Pall Mall cigarettes.
“6. Three old coins; specifically, 1 — 1925 U. S. silver dollar, 1 — English half-penny and 1 — Korean 1-cent piece.
“7. Three $20 bills.
“8. Four or five U. S. $1 bills. (As to the number of $1 bills taken complainant testified ‘I can’t really recall. I think there was four or five, something like that.’)
“9. An undetermined number of quarters and nickels.”
When apprehended and searched the defendant and his associates had in their possession the following items:
1. A black leather wallet containing pictures of the complainant’s wife and children and identification papers.
2. A used Zippo lighter.
3. A 1950 Time Capsule book.
4. A paperbag containing crackers, sardines, and Budweiser beer.
5. Two packs of Pall Mall cigarettes.
6. Three old coins, including 1 — 1925 U. S. silver dollar, 1 — English half penny and 1 — Korean 1-cent piece.
7. Three $20 bills.
8. Three U. S. $1 bills. (There was no evidence of any quarters or nickels being found on the persons arrested.)
The complaining witness testified at trial that three $20 bills and four or five $1 bills were taken from him by his assailants. Defendant claims that the admission into evidence of a lesser amount, three $20 bills and three $1 bills, constituted reversible error.
In People v. Cybulski (1968), 11 Mich App 244, and People v. Jones (1969), 18 Mich App 368, this Court found under similar circumstances that the admission of such an amount of money was proper. The Court stated that where the denominations of the money found and the money taken correspond in a fairly close way the fact of the finding of that specific money would have probative value and be relevant because the money found is fairly marked as identical with the money taken. The admission into evidence of three $20 bills and the three $1 bills was proper in this case.
It should be noted also that even if the money in question were found to be inadmissible there was ample evidence to justify a verdict of guilty of the crime charged.
Affirmed. | [
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] |
Lesinski, C. J.
Defendant was originally charged with assault with intent to commit rape. MCLA §750.85 (Stat Ann 1962 Rev §28.280). He later pled guilty to the crime of attempted rape and was subsequently sentenced to a term of four to five years. MCLA § 750.92 (Stat Ann 1962 Rev §28-.287).
In his brief on appeal, defendant admits that his plea was truthful, that it was freely and voluntarily made, and that the trial judge properly accepted such plea. His sole claim of error is that the sentence imposed by the trial court was too harsh.
The sentence imposed by the trial court was within the statutory limits and will not be disturbed by this Court on appeal. People v. Bryant (1970), 23 Mich App 627; People v. Rawlins (1969), 19 Mich App 514; and People v. Hunt (1969), 16 Mich App 664.
Affirmed.
All concurred. | [
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Quinn, P. J.
Plaintiff vendors filed this action to foreclose a land contract. Defendant vendees filed their answer, a cross-complaint, and a third-party complaint by which they sought a survey to determine the boundary line between them and third-party defendants, revision of the land contract, removal of a fence, and for damages. At the conclusion of hearings, the trial court filed written findings of fact and an opinion. Third-party defendants moved for rehearing on the basis of newly-discovered evidence. This motion was denied and judgment entered. Third-party defendants appeal from the judgment and from the order denying rehearing. Defendants filed a cross-appeal.
The findings of fact by the trial court are supported by the record and they disclose:
1. About 1949, Elliott Gabriel and wife purchased a farm of 70-75 acres. They occupied the farmhouse which was located somewhat south of the center of the farm (A on attached chart).
2. Gabriels gave their daughter and son-in-law, the third-party defendants, ten acres south of the farmhouse on which third-party defendants built their home at a point about 200 feet south of the farmhouse (B on chart). January 12,1952, Gabriels sold third-party defendants the south half of the farm except the ten acres already conveyed and except, “Beginning at the northeast corner of the south half * * * thence west 600 feet, thence south 125 feet, thence east 600 feet, thence north 125 feet to the point of beginning.” (1, 2, 3, 4 on chart). The south line of the latter description came within one foot, ten inches of the south wall of the farmhouse, a fact not realized by Gabriels or third-party defendants at the time.
3. In 1957, widow Gabriel sold the farmhouse, the 125 by 600 foot lot, and the north half of the farm to plaintiffs who were told by Mrs. Gabriel that the south line was about 25 feet south of the farmhouse.
4. In 1962, plaintiffs sold their property on land contract to defendants Goudie. In July of 1967, third-party defendants had their property surveyed and the present controversy was born. That survey fixed third-party defendants’ north line at a point one foot, ten inches south of the farmhouse now occupied by defendants Goudie. Third-party defendants placed a four foot cyclone fence on that line, after which Goudies refused to pay on their land contract with plaintiffs.
5. From evidence of an old fence about 25 feet south of the farmhouse, use of an outhouse (C on chart) by Gabriels, the regular mowing of land south of the farmhouse by Gabriels, a fence built in 1955 by third-party defendants about 15 feet south of the farmhouse, trees south of the farmhouse and the natural topography of the land south of the farmhouse, the trial court determined that third-party defendants had acquiesced in a line 15 feet south of their north line as fixed by their legal description for fifteen and one-half years, and that plaintiffs and Goudies honestly believed the south line of their property to be 15 feet south of where the 1967 survey placed it.
On the basis of this determination, the judgment entered ordered plaintiffs to pay third-party defendants $600 and the latter to quitclaim to plaintiffs a strip of land 15 feet wide and 600 feet deep adjacent to plaintiffs’ south line, the land contract between plaintiffs and Goudies was amended to include the 15 foot strip and $600 was added to the purchase price of the contract. The judgment further excused Goudies from the obligation to make land contract payments from July 1967 to May 1,1969 (date of last payment to date of decision), but Goudies were required to pay interest as it accrued on the July 1967 balance on the land contract and taxes. These obligations were to be charged against $7,500 paid by Goudies to plaintiffs during pendency of the law suit and any balance of the $7,500 was to be credited to the principal of the land contract. In the event the interest and tax payments exceeded $7,500, Goudies were required to pay the excess. The judgment also required removal of the fence that is one foot ten inches from the south line of Goudies’ house.
On appeal, defendants assert as error the award of 15 feet south of their house, claiming they are entitled to 25 feet, the failure to award them damages for decreased value of their property, and credit for interest paid on the theory that the contract price covered the purchase of 25 feet more land than they were actually receiving.
Third-party defendants seek as appellate relief a determination as a matter of law that no cause of action exists as to them or a remand for further proceedings below.
It is apparent from the record that except for the survey of third-party defendants in July 1967, and the fence they built pursuant to that survey, defendants and third-party defendants would be peacefully occupying premises whose dividing line would be approximately where the trial court fixed it. Also apparent is the fact that the error disclosed bylEis survey was discoverable by Gabriels and third-party defendants from January 12, 1952, when the former sold to the latter. This error was discoverable by plaintiffs if they had fixed their south lot line by survey rather than by accepting the word of Mrs. Gabriel. If defendants had required or obtained a survey rather than accepting plaintiffs’ word as to the location of the south lot line, defendants would have discovered the error.
Long established occupational lines are not to be disturbed by recent surveys, Daley v. Gruber (1960), 361 Mich 358, and acquiescence in the practical location of a boundary line by a common grantor can establish the boundary line, Maes v. Olmsted (1929), 247 Mich 180. The later survey created no rights but it did require adjustments to conform to the occupational boundary line. The error disclosed by the survey was a legitimate reason for defendants to stop payment on the land contract until those adjustments were made.
The trial court correctly resolved the issues except for one item. Having found that defendants’ south property line should be 15 feet south of the point where their legal description places the south line on the basis that third-party defendants had acquiesced in a line so located, the latter should receive no compensation for the 15 feet they are required to convey to make defendants’ legal description conform to their occupational description.
With respect to the errors asserted by third-party defendants, a cause of action was stated against them and the trial court did not abuse its discretion in denying their motion for new trial on the basis of newly-discovered evidence.
Remanded for entry of a judgment in favor of plaintiffs which shall fix the amount now due on the land contract and order the payment thereof by defendants forthwith. The judgment shall also order third-party defendants to convey the 15 by 600 foot strip to defendants and order third-party defendants to remove the fence. Plaintiffs may recover costs in this Court from third-party defendants.
All concurred. | [
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Fitzgerald, J.
The present appeal arises from an action in negligence seeking reimbursement for damages resulting from an extensive fire in a newly constructed apartment building in the City of Troy. Plaintiff insurance company is the subrogee of the Melron Construction Company, owner and builder of the Somerset Park apartment complex in Troy, Michigan. Defendant Muskovitz & Pershin & Sons, Inc., are plumbing and heating contractors who were in the process of installing an air conditioning unit in the apartment house at the time of the fire. Plaintiff paid its subrogor the amount of its damages and commenced action against defendants.
The case was tried without a jury, and the court, having found defendant negligent in causing the fire, awarded damages to plaintiff in the amount of $95,657.16. Defendant’s motion for new trial was denied and it now appeals from the decision of the trial court.
On April 25, 1967, in the early morning hours, the fire was discovered on the second floor of building 79, a two-story, 20-unit apartment building under construction in the Somerset complex. Before the fire was extinguished, the building had incurred a considerable amount of damage. It was plaintiff’s contention during the trial that defendant’s pipefitters negligently caused the fire during the time that they were installing an air conditioning unit in the hallway approximately eight to twelve hours before the fire was discovered. The two pipe-fitters testified that they began work at 12:30 p.m., on April 24, 1967, and they finished “sweating” the pipe joints around 1:30 or 1:45 p.m., and remained on the job site until 4:20 p.m., when they left the job site.
The purpose of the operation was to prepare the copper tubing and the accompanying soldered-on-joint for a certain air conditioning unit which was to be attached to the protruding copper tubing by defendant’s employees. This particular operation necessitated the use of an acetylene hand torch to “sweat” elbows and nipples on the copper stubs projecting beyond the wall.
Testimony elicited from Mr. Orval Green, a fire repair contractor, indicated that the unit which defendant’s employees installed was “exactly in the center or very close to the center of the area that was completely burned out”.
The first question which we shall address concerns the cross-examination of defendant’s two employees pursuant to GCR 1963, 507.4, and MCLA § 600.2161 (Stat Ann 1970 Cum Supp § 27A.2161) and whether plaintiff became bound by their testimony as being the truth of the matter so stated.
The testimony of these employees was disputed and contradicted by other proofs. Plaintiff’s three experts testified as to their opinion of the origin of the fire.
The applicable court rule and statute on the cross-examination of the adverse parties reads as follows, GrCR 1963, 507.4:
“Parties or persons who were their employees or agents at the time of the happening of the transaction out of which the action arose, when called as witnesses by the opposite party, may be cross-examined by the party calling them and the testimony given by such persons may be contradicted and impeached.”
MCLA § 600.2161 (Stat Ann 1970 Cum Supp § 27 A-.2161) reads as follows:
“In any suit or proceeding in any court in this State either party, if he shall call as a witness in his behalf, the opposite party, employee or agent of said opposite party, or any person who at the time of the happening of the transaction out of which suit or proceeding grew, was an employee or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or proceeding, and the party so calling and examining such witness shall not be bound to accept such answers as true.”
It would appear from a reading of the statute under which plaintiff called defendant’s employees that plaintiff is not bound to accept these answers as being true. It also seems clear that plaintiff was free to dispute or contradict the testimony of these witnesses through submission of proper proofs. In the case of Gregg v. Goodsell (1962), 365 Mich 685, it was also argued that plaintiff, having called the defendant for cross-examination, was bound by tbe testimony given. In rejecting such reasoning, the Supreme Court stated:
“This Court has recognized in a number of decisions that a party litigant calling the opposite party for cross-examination under the statute, is bound by the testimony elicited unless such testimony is contradicted by other proofs or is inherently improbable or incredible.”
The testimony elicited during the trial from defendant’s employees is to be weighed and considered the same as that of any other witness and may be disbelieved upon the admission of other proofs tending to contradict their testimony. Petrosky v. Dziurman (1962), 367 Mich 539, 548; Gadde v. Michigan Consolidated Gas Co. (1966), 377 Mich 117, 123, 128. See also Phillips v. Phillips (1970), 29 Mich App 127.
We conclude that plaintiff was not bound by the testimony of the two pipefitters. In addition, the trial court, who heard the testimony of defendant’s two witnesses and observed their demeanor, found them almost incapable of belief.
Next we shall consider whether the trial court erred in permitting plaintiff’s expert witnesses to express their opinion as to the cause or point of origin of the fire. Defendant relies upon several early Michigan cases which hold that expert testimony is not admissible as to the source or point of origin of a fire.
An examination of the authorities reveals the case of Dudek v. Popp (1964), 373 Mich 300, which was an automobile negligence case where the investigating officer was allowed to testify as to the point of impact of an accident. In reviewing this expert testimony, the Court stated, at 306, 307, as follows:
“Historically, opinion evidence as to cause and effect in areas of ordinary human experience has been barred, on the reasonable assumption that such determination is attainable by the jurors themselves. We know, however, a definitive trend toward the acceptance of police officers with extensive experience in accident investigations as ‘experts’ and in consequence the allowance (within limits) of their opinion evidence. These opinions have included the point of impact (Zelayeta v. Pacific Greyhound Lines, 104 Cal App 2d 716 [232 P2d 5721]), braking and stopping distances (Kerr v. Caraway [Fla], 78 So 2d 571).
“We align ourselves with the authorities which hold that one properly qualified in accident investigative background may testify either from personal observation or from properly authenticated and admitted exhibits that, in his opinion, certain marks are skid marks and that they were made by a given motor vehicle and his reasons therefor. On the same basis and for the same reasons, he may point out in his opinion the point of impact.”
It should be noted that expert testimony has been allowed by this Court in Great American Insurance Co. v. Michigan Consolidated Gas Co. (1968), 13 Mich App 410, 417, because “the facts surrounding the ignition of gas or gasoline are ordinarily beyond the common knowledge or experience of ordinary people and thus testimony of an expert or skilled witness on the subject would aid the jury in reaching a proper conclusion.”
There is no question but that the plaintiff’s expert witnesses were qualified to testify to all matters regarding the fire, except the exact cause of that fire. After extensive discussion and deliberation, the trial court ruled that expert opinion evidence could be introduced to establish the point of origin and cause of the fire in light of the prevailing rule of Dudek and GCR 1963, 605. The court was correct in this regard.
Because plaintiff could produce no eyewitnesses who were present at the time the fire started and who observed the manner of operation of defendant’s pipefitters and could testify to their negligence in their installation, the negligence of the pipefitters had to be established through circumstantial evidence. Here defendant raises his third point of error, stating that “plaintiff’s evidence in this regard fell far short” and that “the plaintiff did not prove by the balance of probability that it was the defendant’s employees who negligently caused the fire. Therefore, plaintiff’s case fails because it rests on speculations and conjecture.”
The leading case defendant cites in this regard is Kaminski v. Grand T.W.R. Co. (1956), 347 Mich 417. In that case there was, likewise, no witness present who saw defendant’s train strike the gondola cart and send it careening into the plaintiff. There was however, substantial other evidence to support this seemingly solely logical conclusion and the possible alternatives were highly unlikely as they are in the instant case.
Kaminski, supra, itself, actually offers the strongest support for plaintiff’s position. Further support is supplied by the recent case of Gadde v. Michigan Consolidated Gas Co. (1966), 377 Mich 117, which involved the explosion of plaintiff’s gas stove. The circumstantial evidence which was strong enough to support an inference leading to a finding of negligence was that defendant’s employee worked on the stove; that no one used or touched the stove after-wards except the plaintiff; that she did nothing that she had not done many times in the 18 years she had owned the stove; that the gas exploded when she opened the oven door; that the explosion oc curred a matter of hours after the service man left; and that this was consistent with a theory that it would take that long for enough gas to accumulate to cause an explosion. The Court noted, 377 Mich 126, 127:
“There may have been negligence by Getsoian [the serviceman] either in causing a leak or in failing to discover a leak which a trained serviceman should have discovered while working on the stove. When the stove was examined the next day, Basset [the experienced serviceman dispatched the next day by the gas company] found that the oven had a substantial gas leak that had not been created by the explosion. The above facts and Getsoian’s proximity to the occurrence are sufficient circumstances from which reasonable men might conclude that he caused or was responsible for the explosion.”
The facts, together with the trial judge’s opportunity to see and hear the witnesses and, as a trier of fact in this case, to judge their credibility, can lead only to the conclusion that the court’s ruling was correct and should be affirmed.
Affirmed. Costs to appellee.
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Per Curiam.
After a trial by jury the defendant was convicted of second-degree murder, MCLA § 750.317 (Stat Ann 1954 Rev § 28.549), and he now appeals.
It is urged that the evidence adduced at trial was insufficient to warrant a finding of guilty beyond a reasonable doubt. Review of the record shows that there was ample competent evidence from which the jury could conclude beyond a reasonable doubt that the defendant was guilty.
The defendant contends that the trial court erred in giving an instruction regarding aiding and abetting pursuant to MCLA § 767.39 (Stat Ann 1954 Rev § 28.979). The test of whether such an instruction is proper is whether or not there has been evidence presented which would support such a theory of guilt. People v. Ware (1968), 12 Mich App 512. The defendant has argued that it was another person who fired the fatal shots. The record contains evidence that would support a finding that the two men were acting together. Therefore, the giving of the instruction was not improper.
The defendant contends that it was error for the trial court to refuse to strike testimony of two of the prosecution’s witnesses. The defendant did not object at the time this testimony was offered. His counsel cross-examined these witnesses. In general an objection must be made at the time the grounds for the objection become known. Wigmore on Evidence (3d ed), § 18. Since the objection was not timely we do not believe that the trial court abused its discretion in refusing to strike the testimony. See People v. Maloy (1919), 204 Mich 524.
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Pee Cubiam.
The defendant, Lawrence Mucker, was charged with committing two crimes of armed robbery. MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). As to each charged offense he pled guilty to committing the crime of assault with intent to rob, being armed. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). He was sentenced to long terms in prison and appeals.
Before accepting his pleas of guilty, the judge ascertained that the pleas were voluntarily and understandingly made, including that the defendant was aware that the offense to which he pled guilty was punishable by a life sentence. (The statute provides that the offense is punishable by imprisonment for life or for any term of years.)
By direct questioning of the defendant, the judge established the crimes and the defendant’s participation in their commission. See People v. Barrows (1959), 358 Mich 267. In one of the two cases, in response to the judge’s question, “What did you do?”, the defendant said, “I produced a gun and announced a holdup.” And in the other case, in response to questions from the judge he admitted that he committed the robbery, that he was armed, and (again the words of the defendant), “I produced the gun and announced a holdup.”
The defendant’s counsel suggests on appeal that, since one of the sentencing transcripts indicates that the defendant was addicted to heroin and he had been identified in at least 16 other armed robberies, the judge and the defendant may not have been speaking of the same crimes during their dialogues. That possibility does not entitle the defendant to a reversal of his convictions. The judge adequately ascertained the truth of the pleas before accepting them; the record showed that “there is a factual basis for the defendant’s plea — that upon trial he might well be convicted.” People v. Bartlett (1969), 17 Mich App 205, 211. Similarly, see People v. Sylvester Johnson (1970), 25 Mich App 258.
Affirmed. | [
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Danhoe, J.
Plaintiff brought this action seeking benefits under the Workmen’s Compensation Act. The plaintiff contends that he suffered an injury caused by inhaling smoke, dust, fumes, and similar irritants at his place of employment.
A hearing was held at which only the plaintiff’s testimony was taken. Subsequently the depositions of two physicians were submitted. The referee then indicated that he wished to have X-rays of the plaintiff examined by an independent physician. The plaintiff’s attorney responded to the referee’s request with a letter which contained the following statements:
“Pursuant to your instructions and in accordance with your investigative powers under the Workmen’s Compensation Act, I have instructed Dr. Shapiro to send to the doctor chosen by you, the X-rays regarding Mr. Beeler.
“I would assume in conjunction with that we will be favored with both reports and the opportunity to cross-examine the doctor chosen, if you choose to consider Ms views in the determination of this case.”
The physician examined the X-rays and submitted a report to the referee. The report indicated that the plaintiff had not suffered an injury. On June 5, 1968, the referee mailed a copy of the physician’s report to the plaintiff’s attorney. In a decision dated July 2, 1968, and mailed July 15, 1968, the referee found that the plaintiff had not suffered a personal injury arising out of and in the course of his employment.
On appeal one issue of substance is presented: whether the plaintiff was deprived of due process of law because he was not allowed to cross-examine the physician that had been selected by the referee. The denial of this right would, of course, require a reversal. See 2 Larson Workmen’s Compensation, § 79.63.
The appeal board held that the plaintiff had waived the right to cross-examine by the failure to make an appropriate motion after he had received a copy of the doctor’s report. We do not agree. Particularly in view of the plaintiff’s earlier request for cross-examination, we cannot presume waiver merely from his silence.
Remanded for further proceedings. We do not retain jurisdiction.
All concurred. | [
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Danhop, P. J.
On November 7, 1965, at approximately 8:30 a.m. two men held up an unlicensed pawn shop. The proprietor shot one of the men and the two men fled. At about 9:30 a.m., a car owned by the defendant was involved in a two-car collision. After the accident the occupants of the car fled. A box containing items that had been stolen was found near the car. Shortly thereafter the defendant appeared at a hospital seeking treatment for a gunshot wound. While the defendant was in the hospital he was arrested, and after a jury trial he was convicted of robbery armed, MCLA § 750.529 (Stat Ann 1971 Cum Supp §28.797). He now appeals raising numerous allegations of error.
The defendant contends that the trial court erred in allowing the jury to be informed that the defendant had refused to make any statement after he had been arrested. It is well-settled that it is not permissible to inform the jury that the defendant has exercised his right to remain silent. However, this rule has long been subject to the exception that when the defendant takes the stand he waives his privilege and the jury may be informed of his previous silence. People v. McCrea (1942), 303 Mich 213. Since the defendant took the stand, he waived his privilege against self-incrimination under long-standing Michigan law. However, in light of Malloy v. Hogan (1964), 378 US 1 (84 S Ct 1489, 12 L Ed 2d 653) we must consider whether the defendant’s privilege against self-incrimination under the Federal constitution was violated.
This question was presented in People v. Hicks (1970) , 22 Mich App 446, where the majority opinion, over a dissent by the author of this opinion, held that the Federal constitution forbids any mention of a defendant’s refusal to speak, even if the defendant has taken the stand. We decline to follow Hicks. We hold as did this Court in People v. Graham (1971) , 29 Mich App 528, and People v. Russell (1970), 27 Mich App 654, that People v. McCrea, supra, is still controlling.
In Hicks the majority relied on Grunewald v. United States (1957), 353 US 391 (77 S Ct 963, 1 L Ed 2d 931) and Stewart v. United States (1961), 366 US 1 (81 S Ct 941, 6 L Ed 2d 84). However, these cases do not support the broad rule laid down in Hicks. In Grünewald and Stewart the Supreme Court held that under the particular circumstances of the case it was improper to allow the jury to learn that the defendant had exercised his privilege against self-incrimination. None of the Federal cases cited to us control this case and until the United States Supreme Court or the Michigan Supreme Court adopts the rule stated in Hicks we consider ourselves bound by McCrea.
The defendant contends that a statement he made to a police officer was improperly admitted into evidence. The statement was made about four days after the robbery. The defendant contends that he had been denied his right to counsel, because he had previously indicated a desire to see a lawyer, but had not done so at the time he made the statement.
The defendant relies on Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977). We do not believe that Escobedo is in point. The statement was made to an officer who was attached to the accident prevention bureau. This officer was investigating the automobile collision and had no connection with the investigation of the robbery. The officer had no knowledge of the robbery investigation and was merely making a routine inquiry into the accident.
The defendant also questions the admissibility of a statement he made to a police officer while he was in the emergency room of the hospital. There was testimony that the defendant was groggy at this time, and he contends that because of this the statement is inadmissible.
We see no reason to exclude the statement. While there was testimony that the defendant was groggy there is no indication that he was irrational or unable to understand what was happening. Indeed there was testimony that indicated that he was in command of his faculties. The officer who took the statement was not investigating the robbery, but was acting in response to the notification by the hospital that they had a gunshot victim. There is nothing in the record to indicate any type of undue influence.
The defendant contends that he was denied effective assistance of counsel because of the incompetence of his trial counsel. The record does not support this contention.
The defendant contends that the trial court erred in taking too active a part in the examination of the witnesses. It does not appear that the defendant was prejudiced by the trial court’s conduct, and therefore, there was no reversible error. People v. Bauglm (1969), 16 Mich App 156.
The defendant contends that his identification at the trial was a product of an improper pretrial confrontation. The evidence of the defendant’s guilt was overwhelming. The defendant had been shot and there was expert testimony to the effect that he had been shot with the complaining witness’s gun. The fruits of the crime were found next to the defendant’s car. On this record we can only conclude that the omission of the eyewitness identification would not have affected the jury’s verdict. Therefore, we can conclude beyond a reasonable doubt that if there was error it was harmless error. Harrington v. California (1969), 395 US 250 (89 S Ct 1726, 23 L Ed 2d 284).
The defendant’s other assignments of error have not been properly preserved for appeal and therefore we do not pass upon them.
Affirmed.
All concurred. | [
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] |
Per Curiam.
After jury trial defendant was convicted on a charge of breaking and entering with intent to commit larceny. MCLA § 750.110 (Stat Add 1970 Cum Supp § 28.305). He appeals claiming various allegations of error.
At the trial, a certain drill was admitted into evidence and defendant contends this was improper for lack of an adequate foundation. The drill owner identified it and testified it was missing after the breaking and entering. The drill was also identified by another witness who testified that not long after the crime he purchased it from the defendant. A participant in the crime also identified the drill. This was adequate foundation; the drill was properly admitted. People v. Thomas (1923), 221 Mich 651; People v. Harrington (1969), 17 Mich App 462.
Defendant also quotes a portion of the trial court’s instructions to the jury and contends it is not a proper explanation of the term reasonable doubt.
This instruction reads:
“There is nothing different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any important question depending upon the evidence before them. You are expected to use your good sense, and consider the evidence only for those purposes for which it has been admitted and give it reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings.”
We find the quoted instruction is not the trial court’s instruction on reasonable doubt. In another portion of the instructions the trial court fully and correctly explained the meaning of that term. The instruction quoted above merely informs the jury how it may weigh the evidence.
Defendant also contends the trial court instructed the jury in a way that would lead them to believe that they must arrive at a verdict even if they had to sacrifice their honest convictions to do so. A review of the instructions in their entirety does not support this contention. The trial court only instructed the jury that in criminal cases a verdict must be unanimous.
Defendant contends that the prosecutor failed to prove allegations that he made in his opening statement. It is well settled that in the absence of bad faith or prejudice to the defendant this is not reversible error. People v. Davis (1955), 343 Mich 348; People v. Thomas (1952), 333 Mich 496; People v. Ryckmam (1943), 307 Mich 631; People v. Ecarius (1900), 124 Mich 616. In his opening statement the prosecutor indicated that when the man who purchased the drill did so he wrote down the license numbers of two cars and gave the numbers to a police officer. The police traced the numbers and were led thereby to the defendant. The value of this is to place the defendant at the scene when the drill was sold. The fact that defendant sold the drill is uncontradicted. Every witness who testified on this question agreed to this fact. Defendant agreed that the police officer to whom the numbers were given need not testify. On these facts we find no bad faith and no prejudice to defendant.
Defendant also contends there was not sufficient evidence for the jury to find guilt beyond a reasonable doubt. He bases this claim largely on the fact that an admitted participant in the crime testified defendant did not take part in the crime. However, another admitted participant in the crime testified defendant did take part. The question of which witness to believe was one of fact for the jury to determine. People v. Franklin (1969), 17 Mich App 657.
Judgment affirmed. | [
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O’Hara, J.
Plaintiff husband commenced an action for divorce on the ground of adultery. MOLA §552.6(1) (Stat Ann 1957 Rev §25.86[1]). Defendant wife answered and counterclaimed for divorce on the ground of cruelty. MOLA § 552.8 (Stat Ann 1957 Rev §25.88).
At the trial, evidence was introduced that defendant had left her husband and their children and moved into an apartment with another man. They signed the lease therefor as husband and wife. As a defense against such conduct, defendant offered testimony of plaintiff’s alleged refusal or inability to provide adequate finances to meet family needs. Defendant furthermore alleged physical mistreatment by her spouse on several occasions.
Plaintiff responded that any lack of support was attributable to fluctuations in his business ventures. Additionally, he contended that on the sole occasion on which he struck his wife he had ample provocation by reason of her drunken behavior at the time.
At the close of proofs, the trial court entered an opinion in which he held that “the parties by their own conduct forfeited any right to a judgment in this matter”. Accordingly, he dismissed plaintiff’s complaint and defendant’s counterclaim. From the dismissal of his complaint, plaintiff alone appeals on leave granted. Defendant has neither responded nor filed a cross-appeal.
The sole issue before us is whether the trial court erroneously dismissed plaintiff’s complaint under the so-called “clean hands” doctrine.
As an initial observation, we note that the instant case does not come within the purview of the recrimination defense. MCLA § 552.10 (Stat Ann 1957 Rev § 25.90). The husband is not alleged to be guilty of the same misconduct charged against his wife.
In the case at bar, while each party may bear some responsibility for the state of affairs complained of, the element of fault seems to us to be unequally apportioned. Plaintiff husband may not have been the most stable provider, but there is no indication that he voluntarily abdicated his responsibilities of providing support. His inability to assure an adequate income may, as found by the trial court, have contributed to the circumstances which led defendant to leave the marital abode, but his conduct, standing alone, cannot warrant the granting of a divorce to defendant. Conversely, the conduct of the wife cannot be justified, and, in itself, constitutes adequate ground for the granting of a divorce to her husband.
It has long been a rule that those who come into a court of chancery must have clean hands and, if not, the court will leave the parties as it finds them. However, there is a growing tendency in divorce cases to relax this rule, on grounds of public policy or the particular proofs in the case under consideration. The more modern view is to adopt a doctrine of comparative rectitude or turpitude. Weiss v. Weiss (1913), 174 Mich 431, 437.
In Arix v. Arix (1920), 212 Mich 438, a case in point, plaintiff wife sought a divorce on the ground of mental cruelty. Defendant husband, in his cross-bill, charged his spouse with mental cruelty and adultery. In spite of the wrongdoing of both marital partners, a divorce decree was entered on behalf of the wife. In reversing the lower court and entering a decree granting defendant a divorce, the Michigan Supreme Court concluded (p 441):
“the cruelty of which the circuit judge found defendant guilty — that is, of threats of personal violence and the imputation of a lack of chastity — were, if not warranted by the facts, at least excusable, and * # * a divorce should have been granted defendant on his cross-bill upon the ground of adultery.”
Also, see Blay v. Blay (1960), 362 Mich 56. Though Arix, supra, appears to lie dispositive of the instant case, we note the failure by either of the parties or the trial court to raise the question of the competence of either the husband or wife to testify in a divorce action as to adulterous conduct.
MCLA § 552.40 (Stat Ann 1971 Cum Supp § 25-.116) provides in pertinent part that the testimony of neither husband nor wife shall be received in support of a charge of adultery.
Moreover, MCLA § 600.2162 (Stat Ann 1962 Rev § 27A.2162) provides in part that:
“in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.”
Inasmuch as the only witnesses who testified were the plaintiff husband and defendant wife, there is serious question whether any competent testimony was adduced.
However, at the outset of the proceeding, plaintiffs attorney moved the court to notice judicially all the records and files in the case, and in particular the proceedings in the custody petition held prior to trial. I see a rather serious public policy-question here. From that testimony, we quote, in relevant part, that of a Mrs. Mondari, a co-manager of the apartment house where defendant was residing:
“Q. Mrs. Mondari, do you recollect the defendant seated at the table?
“A. Yes, sir.
“Q. When did you first see the defendant?
“A. Uh, she came into — with a gentleman to lease an apartment.
“Q. And do you have that lease ?
“A. Yes, sir.
“Q. May I see it, Are you uneasy? Would you like some water?
“A. No; just old age, I guess. I’m sorry.
(Whereupon plaintiff’s Exhibit #1 was marked by the court reporter.)
“Mr. Di Teodoro [for plaintiff]: Your Honor, I propose to admit this lease into evidence as plaintiff’s Exhibit One.
“The Court: All right.
“Mr. Cyrul [for defendant]: No objection.
“Q. (By Mr. Di Teodoro, continuing): Now, did the defendant affix her signature to that lease?
“A. Yes, sir.
“Q. Did she affix her signature as Eleanor K. Formicola, or another name?
“A. No, sir; as another name.
“Q. For what length of time is that lease?
“A. It’s for one year.
“Q. And did the defendant take up residence at your apartment house after having executed that lease ?
“A. Yes.
“Q. For how long a period of time? For how long a period of time did she live there?
“A. This — I think she went in May seventh. At least the lease was signed May seventh.
“Q. And how long has she lived there?
“A. Since then.
“Q. Does she remain living there now?
“A. Yes, sir.
“Q. To the best of your knowledge and belief, based upon your observations, what relationship is the defendant to the man who also executed that lease?
“A. Husband and wife.
“Q. Have you ever had conversation with the defendant?
“A. Only when the application was formed (sic) and ‘good morning’ and that’s all.
“Q. Did you ever observe the defendant after the lease was executed?
“A. Well, I meet her in the hall.
“Q. And how often would you say you saw her ?
“A. Sometimes once a month, once a week.”
While adultery cannot be conclusively proved by the existence of opportunity for such behavior, Kessinger v. Kessinger (1960), 360 Mich 528, the foregoing testimony certainly establishes, at least, very aggravated and extreme cruelty 2**on the part of the wife.
On our de novo review of the record, we conclude there was ample testimony to support the grant of a decree of divorce to appellant husband. The order of the trial court dismissing the complaint and counterclaim is vacated. The case is remanded to the trial court for entry of a decree of divorce for plaintiff husband. On remand, a hearing will be held as to custody, support, and any other essentials to be included in the decree.
Costs to plaintiff-appellant.
All concurred.
See Wells v. Wells (1951), 330 Mich 448; Dean v. Dean (1955), 343 Mich 458; Kelso v. Kelso (1964), 373 Mich 592.
Whether or not mental cruelty was specifically alleged, we are empowered to amend the pleadings to conform to the proofs. GCR 1963, 820.1(7). | [
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] |
Fitzgerald, P. J.
Plaintiffs Peter E. Minsel and his wife, Linda J. Minsel, brought action on September 30,1968, against El Rancho Mobile Home Center, Inc., and Hampton Homes, Inc., both Michigan corporations. Plaintiffs sought rescission of a contract with El Rancho for the purchase of a mobile home which was manufactured by codefendant Hampton Homes, as well as restitution of amounts paid under the contract, plus incidental damages and court costs.
Plaintiffs purchased their mobile home on July 16, 1968. The agreed price was $7,700 plus $1,025 for such extras as an air conditioner, a skirt, and an awning, which in turn increased the total price to $8,725. On July 23, 1968, plaintiffs paid El Rancho Mobile Homes a down payment of $2,784 and arrangements were made for delivery of the trailer to a lot rented by plaintiffs in Grand Rapids. El Rancho delivered the mobile home on July 26 or 27, 1968, and plaintiffs actually moved into it on or about July 28, 1968. As a result of the company’s failure to properly remedy numerous defects, plaintiffs tendered notice of their intent to rescind the contract on September 11, 1968. At this time the Minsels decided to move out of the trailer, but encountered considerable difficulty in finding another place to live. When they finally found a suitable apartment, they were forced to wait until November 1 before they could move in. Hence, they remained in the mobile home approximately six weeks after having tendered it back to defendant.
Upon vacating the mobile home, plaintiffs thoroughly cleaned it, continued to look after it, and paid rent and utilities on the lot until sometime in February 1969, when defendant finally removed it. Subsequent to notice, which was tendered in September, defendant did not offer to cure defects or tender the mobile home hack to plaintiffs. Plaintiffs were granted the relief for which they prayed.
We shall now address ourselves to a consideration of whether the acts and conduct of plaintiffs subsequent to their notice of rescission negated any later claim of revocation of acceptance of nonconforming goods as set forth in the Uniform Commercial Code. Defendants contend that it is an undisputed fact that plaintiffs retained possession and continued to use the mobile home as their domicile fully six weeks after having mailed the September 10 letter of rejection which was inconsistent with their alleged rejection and as such constituted a wrongful exercise of ownership by the buyer; hence, the defendants claim that they may treat such continued use as an acceptance. Therefore, the narrow issue becomes one of construction, more precisely whether plaintiffs adhered to the requirements set forth in MCLA § 440.2608 (Stat Ann 1964 Rev § 19.2608), at the time of revoking their acceptance. The statute reads as follows:
“(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it.”
This position is qualified in MCLA § 440.2608(3) (Stat Ann 1964 Rev § 19.2608[3]), which states:
“(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”
Specifically, the above statute points to MCLA § 440.2602(2) (a) (Stat Ann 1964 Rev § 19.2602[2] [a]), for an appropriate standard:
“(a) After rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller.”
An examination of the UCC as enacted in Michigan reveals MCLA § 440.1102 (Stat Ann 1964 Rev § 19.1102), which deals with the construction of the act and its purposes. In § 1102(1) of the statute, it is stated that: “This act shall be liberally construed and applied to promote its underlying purposes and policies”. One of these purposes is to “modernize the law governing commercial transactions”. With these facts in mind, we proceed to the determination of whether plaintiffs’ actions can be reasonably construed as a continued exercise of ownership of the goods at issue.
An examination of the record discloses that the plaintiffs continued to live in the mobile home for approximately six weeks after tendering their letter of rejection on September 10, 1968. From the time of rejection they were under a duty to protect and care for the goods of the seller for a reasonable period. As stated in MCLA § 440.2602(2) (b) (Stat Ann 1964 Rev § 19.2602 [2] [b]):
“If the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of the article (subsection (3) of section 2711), he is under a duty after rejection to hold them with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them.”
Upon leaving-, plaintiffs fulfilled this duty by cleaning the mobile home thoroughly, looking after it as well as the continuance of payment of the lot rental and utilities through February 1969, when defendants finally had it removed. The record is bare of any evidence that defendants even attempted to contact plaintiffs in connection with removal of the mobile home between September 10, 1968, and February 1969. Furthermore, defendants tendered no proofs as to how the delay in moving out may have prejudiced them, nor do they argue that the delay was perpetrated through bad faith or even that it might have been avoided. The sole assertion would appear to be that plaintiffs’ continued use of the mobile home as their domicile is tantamount to an exercise of ownership and acceptance of the goods under the terms of MCLA § 440.2602(2) (a).
Should this Court apply such a harsh construction of the statutory provisions now before us, such actions would be contrary to the “rule of reasonableness” evident throughout the UCC.
The precise question now before us is novel, at least to the extent we are unable to find authority construing “exercise of ownership”, which is directly on point and determinative of the present case. Therefore, a rule of reason should prevail. We note that plaintiffs’ continued use of the home for some six weeks after rejection did not injure defendants in any way, in fact, under the circumstances, and in view of defendants’ failure to respond to the notification of September 10, 1968, such occupancy served as added protection for defendants’ property as contemplated under MOLA § 440.2602 (2) (b) supra. It is for these reasons that we affirm the decision of the trial court. This determination is limited to the facts of the present case.
Affirmed. Costs to appellees.
All concurred.
MOLA § 440.1101 et seq. (Stat Ann 1964 Rev § 19.1101 et seq.)
MCLA § 440.1102(2)(a) (Stat Ann 1964 Bev § 19.1102[2][a]). | [
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] |
Lesinski, C. J.
Defendant, Alfonso Joshua, was convicted by a jury of armed robbery, MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). He appeals as of right alleging illegal search and seizure, prejudicial lineup procedures, and trial error.
Defendant was arrested for a traffic violation. After a routine check at the police station, it was found he was wanted for violation of probation. When a personal search revealed defendant was wearing an empty shoulder holster, the police radioed a call to stop the car and the two occupants with defendant when he was apprehended. A search of the occupants produced a .32-caliber pistol alleged to have been given them by defendant immediately before his arrest.
Defendant was identified as the man who had robbed a shoe store at gunpoint three weeks earlier in three separate lineups by the manager of the store and two witnesses.
Defendant’s first claim of error is that the pistol was improperly admitted into evidence as the fruit of an illegal search of the occupants of the car. Defendant has no standing to complain of the search of the occupants. The immunity from illegal searches and seizures is a personal privilege. “No rights, constitutional or otherwise, are involved when property not under the control of defendant is searched.” People v. Hale (1967), 7 Mich App 127, 132; People v. Goeppner (1969), 20 Mich App 425. We find no error.
Despite the absence of timely objection, we proceed to consider the merits of defendant’s claim that the conduct of the lineup was prejudicial. The guidelines for preservation of this issue below were not available at the time of defendant’s trial in 1967, and the presence of a complete record makes remand for an evidentiary hearing unnecessary. See People v. Childers (1969), 20 Mich App 639, 646.
The conduct of the lineup was not prejudicial. The record reveals that the members of the lineup fairly resembled the description of the robber given by the witnesses. Descriptions of the participants in the showup reveal several members resembled defendant. We conclude that the lineups were not unnecessarily suggestive or conducive to mistaken identification as to deny him due process of law. Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199).
The fact that defendant was not represented by counsel at these lineups did not deprive him of due process of law. The rule establishing the right to counsel at that stage of the proceedings was announced in United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). That decision was only given prospective application. Stovall v. Denno, supra. Since the lineups in the instant case occurred prior to Wade, denial of counsel did not, alone, establish lack of due process.
The suspect described by the witnesses to the robbery wore a blue hooded sweatshirt and put the stolen money into canvas money bags. The prosecutor, in his opening statement, made reference to the fact the search of the vehicle produced a blue hooded sweatshirt and several canvas money bags. At trial these exhibits were not available as evidence and the prosecutor was not permitted to question witnesses regarding these exhibits. No objection to the prosecutor’s remarks was raised at the close of proofs, nor in the motion for new trial. In People v. Fowler (1895), 104 Mich 449, 452, it was said:
“If this statement was made in good faith by the prosecuting officer, and on the trial he found that the proofs did not substantiate the statement, we do not think that, for that reason alone, the conviction should be reversed. The prosecuting attorney may not always find that the proofs will meet the case he expects to make when he makes his opening statement to the jury, and it is not every failure of proof, under such circumstances, that warrants a reversal. In this case the fact was not proved and the jury must be presumed to have based their verdict upon the evidence and not upon the statement of counsel.”
Defendant has not shown, nor has a thorough examination of the record revealed, bad faith on the part of the prosecutor.
The prosecutor’s remark in closing argument that a man who points a gun at another with a demand for money infers, “Your money or your life”, was a reasonable inference from the facts in evidence. The prosecutor is entitled to comment on the evi denee and draw reasonable inferences therefrom. People v. Morlock (1925), 233 Mich 284. We find no error.
Affirmed.
O’Hara, J., concurred. | [
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Per Curiam.
Plaintiff and defendant were married in 1963. Daughters were born in 1964 and 1965. On April 18, 1968, plaintiff filed a complaint for di vorce, alleging extreme cruelty. The court ordered defendant to pay interim support and granted plaintiff temporary custody of the two girls. Defendant counterclaimed for divorce on the ground of extreme cruelty and further sought an order changing custody from the plaintiff mother to the defendant father. The trial court, following a hearing, granted defendant a divorce and the permanent custody of the children, with reasonable visitation rights to the mother.
Following the divorce in 1968, both parties remarried. In June 1970, plaintiff filed a motion for change of custody. A hearing was held where both parties testified and presented their witnesses. The trial judge, after reviewing the testimony, denied the motion to change custody for the following reasons:
“The court cannot find that since the entry of this judgment that the situation has changed to such an extent that the petition for change of custody should be granted. The court is satisfied that the children are now in a good environment and the court is not disposed to change that custody and experiment with the future of these children. It may very well be that the mother has changed somewhat; this could be. It’s not the province of the court to attach blame. The court believes that we should be charitable, but we can not take chances with the welfare of the children. It’s not a question of what the parents may want or what they may feel about their rights and so forth; the question is what’s best for the children. As I said, the court feels the children are now in a proper environment and that they should remain there. The court does feel, however, that the mother should have visitation. I am satisfied from the testimony in this case that this may be disturbing to these children, and I, therefore, want the Friend of the Court to make another investiga tion. of the present' home, and I want Mrs. Klemkosky to have some counseling in order that she may find out what the proper way is to deal with these children. There is no longer any question about what — who is right and who is wrong about this divorce ; the question is now what is best for these children. I want some help that will insure that the children will be properly taken care of when they visit with their mother, that they aren’t told things they should not be told, and that their welfare comes first. This is what I want to be sure of. I feel the mother should have rights of visitation. There isn’t any question about that. I am satisfied she loves her children; but the question is, what is best for them and what we can do to insure that they will be taken care of right.”
The guiding principle in deciding child custody cases is that the court’s decision must be based on the best interest of the child. See PA 1970, No 91 (MCLA § 722.25; Stat Ann 1971 Cum Supp §25-.312[5]) ;Hentz v. Hentz (1963), 371 Mich 335; Sweet v. Sweet (1950), 329 Mich 251; Tarr v. Pollock (1970), 25 Mich App 437; Lamky v. Lamky (1970), 29 Mich App 17.
Having reviewed the lower court record and the transcript, we are satisfied that the trial court’s decision is consistent with the statutory directive and that the evidence was sufficient to support the trial court’s factual determination. See PA 1970, No 91 (MCLA §722.28; Stat Ann 1971 Cum Supp §25-.312 [8].)
Judgment affirmed. | [
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Vander Wal, J.
Clara Raven is presently Deputy Medical Director for Wayne County under the authority of PA 1953, No 181 (MCLA § 52.201 et seq. [Stat Ann 1961 Rev § 5.953(1) et seq.)). That act abolished the post of county coroner and substituted therefor the new posts of county medical examiner and deputy medical .examiner. That act provided:
“County medical examiners shall be physicians licensed to practice within the state and shall be residents of the county for which they are appointed * * * . The board of supervisors may appoint such deputy county medical examiners, who shall have the same qualifications as the county medical examiner.”
The act has twice been amended, the current version being MCLA 1971 Cum Supp § 52.201 et seq. (Stat Ann 1971 Cum Supp § 5.593[1] et seq.). The statutory qualifications and duties of the respective offices have remained essentially the same.
The present controversy arose when the Wayne County Board of Trustees, administrators of the Wayne County Employees’ Retirement System, requested Dr. Raven’s retirement in accordance with the county’s retirement ordinance. The enabling legislation, MCLA 1971 Cum Supp § 46.12a (Stat Ann 1971 Cum Supp § 5.333[1]), provides in part:
“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 desig nated in said plan which shall not he less than 65 years of age.”
Pursuant thereto, the Wayne County Board of Supervisors adopted the retirement ordinance in question which provides in part:
“(h) Any member, except an elected or appointed official of the county, shall be separated from county service on the first day of the calendar month next following the month in which he attains the age of 65 years.”
The Board of Trustees maintains that Dr. Baven is subject to mandatory retirement at age 65 while she contends that as an “elected or appointed official” she is exempt from compulsory retirement. There has been little recent litigation on this point, but the case of Kent County Register of Deeds v. Kent County Pension Board (1955), 342 Mich 548, is dispositive of the matter.
In Kent, the board, which administered an almost identical ordinance passed pursuant to the same statute, maintained that the Deputy Begister of Deeds for Kent County was not an “elected or appointed official” and, therefore, not exempt from mandatory retirement. The Supreme Court there stated at pp 551, 552:
“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: (1) it must be created 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 legisla tive 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 [1879], 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.’ ”
The Court then held that, even though the tenure of any particular incumbent was at the pleasure of the register, the office itself could not be abolished except by legislative action, and therefore requirement (5) was met. That requirement is also met in the instant case as the office of deputy medical examiner can be abolished only by the legislature while the tenure of the incumbent, unlike that of the deputy register, is not subject to political change.
The trial court was correct in holding that Kent controlled the decision in the instant case. The court erred, however, in ruling that “condition (2) and the latter indicia as indicated in Landon” were not met. Firstly, the 1879 opinion of Justice Cooley was not determinative of the outcome of Kent nor should it be here. Secondly, the deputy register of deeds is required to execute a bond of trust because that official handles money (Dr. Raven does not), and the oath is of much less importance today than it was in 1879.
More importantly, an examination of the relevant statutes shows that the deputy medical examiner is possessed of a larger share of the sovereign power of government than is the deputy register of deeds.
Wayne County has a civil service system, and because MCLA 1971 Cum Supp §§ 52.201(d) and (f) (Stat Ann 1971 Cum Supp §§ 5.953[Id] and [If]), provides the method of appointment and removal of the deputy medical examiner in counties having a civil service system, appellees contend that this case is to be determined under the civil service law.
This argument was presented below in appellees’ trial brief, but was not considered by the trial court in its opinion granting summary judgment. There is, moreover, a settled record certified by the trial court in this case. Neither the trial brief nor the exhibits annexed to it [detailing Dr. Raven’s employment record, which were not introduced into evidence] are a part of that record. Where the record is settled and certified on appeal, “ [n] o supplemental record will he considered on the appeal unless the same is certified by the trial judge or ordered by the [appellate] court”. GCR 1963, 705.19(e); GCR 1963, 812.2(b).
There is no issue relative to civil service law properly before us.
Dr. Raven may he hound by the retirement provisions of this or other applicable ordinances. This we don’t know nor are we in a position to determine. Summary judgment is improper where there are issues of fact to he determined GCR 1963, 117.2; Kaminski v. Standard Industrial Finance Company (1949), 325 Mich 364.
Reversed and remanded for proceedings not inconsistent with this opinion. No costs, a public question being involved.
All concurred. | [
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Quinn, P. J.
On or about July 25,1966, plaintiff, an unlicensed residential builder, and defendants entered into a written contract for the construction of a house by plaintiff for defendants on premises owned by them. Claiming an unpaid balance due on this contract, plaintiff filed this action to recover that balance and consequential damages. Defendants filed their answer which included an affirmative defense that the provisions of MCLA § 338.1516 (Stat Ann 1970 Cum Supp §18.86[116]) estopped plaintiff from bringing this action. Thereafter defendants moved for accelerated judgment pursuant to GCR 1963, 116.1(5) on the basis of the same statute. This motion was denied after the trial court determined that the statute did not apply on the facts of this case. Defendants appeal from that denial.
The contract of July 25, 1966 called for construction to commence August 1, 1966, with a completion date of January 1,1967. PA 1965, No 383, of which the statute cited above is a part, was signed into law with immediate effect August 18, 1965. However, by PA 1966, No 12, immediately effective March 30, 1966, MCLA § 338.1501 (Stat Ann 1971 Cum Supp § 18.86 [101]), the provisions of act 383 pertinent to this decision became effective September 1, 1966.
MCLA §338.1501 reads:
“In order to safeguard and protect homeowners and persons undertaking to become homeowners, it shall be unlawful on and after September 1, 1966, for any person to engage in the business of or to aet in the capacity of a residential builder or a residential maintenance and alteration contractor and/or salesman in this state without having a license therefor, unless such person is particularly exempted as provided in this act.”
After providing a criminal penalty for violation of the act, MCLA § 338.1516 reads:
“No person engaged in the business or acting in the capacity of a residential builder and/or residential maintenance and alteration contractor may bring or maintain any action in any court of this state for the collection of compensation for the performance of any act or contract for which a license is required by this act without alleging and proving that he was duly licensed under this act at all times during the performance of such act or contract.” (Emphasis supplied.)
The narrow question presented for our decision is whether this statute bars an action by an unlicensed builder on a contract entered into and partly performed prior to the date that the builder had to be licensed but completed thereafter.
Eelying on Alexander v. Neal (1961), 364 Mich 485, Bilt-More Homes, Inc. v. French (1964), 373 Mich 693, Tracer v. Bushre (1968), 381 Mich 282, and Chilson v. Clevenger (1968), 12 Mich App 56, defendants argue that it is established, “residential builders cannot either bring or, having brought, maintain any action in any court of this state without proving themselves duly licensed at all times during the performance”. We do not question that these cases establish the principle quoted; however, none of them is the case before us. Here the contract was made and some work was performed thereunder prior to the operational date of the licensing statute. In the cases relied on by defendants, the contract was made or the work was performed at a time when the statute required the builder to be licensed.
On the strength of Osborn v. Charlevoix Circuit Judge (1897), 114 Mich 655, defendants contend that the effective date of act 383 was August 18, 1965, and that it applies to the contract of July 25, 1966. Osborn did not involve a contract and did not present a question of impairment of contract which is presented in the case before us if defendants’ contention is correct.
A statute passed to take effect at a future day is to be understood as speaking from the time it goes into operation, and not from the time of its passage, Price v. Hopkin (1865), 13 Mich 318. Recognition of this principle is implicit in the language “for which a license is required by this act” found in MCLA § 338.1516, supra.
Affirmed with costs to plaintiff and remanded for trial.
All concurred. | [
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] |
Per Curiam.
After a non jury trial the defendant was convicted of attempted larceny from a person, MCLA § 750.92 (Stat Ann 1962 Eev § 28.287) and MCLA § 750.357 (Stat Ann 1954 Eev § 28.589). He now contends that the people failed to indorse two alleged res gestae witnesses.
The identity of one of the witnesses became known at the preliminary examination and the defendant did not move that his name be indorsed or demand his production. This issue may not be raised for the first time on appeal. People v. Rimson (1966), 3 Mich App 713; People v. Printess C. Jackson (1968), 11 Mich App 727.
The record does not show that the second witness was in fact a res gestae witness. Also, even if he were a res gestae witness, his identity became known at the trial and the defendant did not move that his name be indorsed.
Affirmed. | [
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Per Curiam.
Defendant appeals a plea-based conviction on a charge of unarmed robbery. The people move to affirm.
Defendant first claims that his plea was the result of undue influence, compulsion, or duress. This claim is contradicted by the transcript of the guilty plea proceedings.
The defendant further claims that his conviction was invalid because the trial judge prior to the acceptance of his guilty plea did not advise him of the nature of the accusation against him. The record reveals that defendant was in fact fully aware of the nature of the accusation. People v. Stewart (1968), 10 Mich App 553.
The voluntariness of a plea of guilty may not be questioned for the first time on appeal. People v. Taylor (1970), 383 Mich 338.
Affirmed. | [
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Per Curiam.
This is an appeal from a judgment on February 11, 1970, in the Court of Claims finding no cause of action. Plaintiff appeals by right.
Plaintiff’s decedent was killed when the motorcycle he was riding ran into the side of an automobile which was driven by Daniel Timmons. Mr. Timmons, who had been driving east on Business Loop 1-94, a four-lane divided highway in Kalamazoo County, made a right turn at Sprinkle Road. Sprinkle Road was under construction, however, and barricades had been placed 40 to 50 feet from the intersection to stop traffic. Mr. Timmons made a U-turn and proceeded back to Business Loop 1-94 with the intention of returning on the highway to the road immediately west of Sprinkle Road.
Apparently Mr. Timmons did not stop when he regained the intersection, and as he crossed the east-bound lanes for purposes of turning left or west on the business loop, plaintiff’s decedent, who was traveling in the east-bound passing lane, struck Mr. Timmons’ anto in the left side. It was plaintiff’s theory below that the state’s negligence in failing to properly erect signs to inform Mr. Timmons that Sprinkle Road was closed was the proximate cause of the accident in that he became confused after he made the turn onto Sprinkle Road and that his confusion caused him to reenter Business Loop 1-94 without stopping. It is plaintiff’s position that had the state erected the proper signs informing Mr. Timmons that Sprinkle Road was closed, he never would have made the turn in the first place; and, therefore, but for the state’s negligence the accident would not have happened.
The trial court, sitting as the trier of fact, found that while the State Highway Department was negligent in failing to erect the proper signs, such negligence was not a proximate cause of the accident and death. The court found that the sole proximate cause of the accident was the act of Mr. Timmons and that Mr. Timmons’ act in not stopping when returning to the intersection was not caused or did not flow from the state’s negligence.
The trial court found that the act of Mr. Timmons was an intervening negligent act which superseded the negligent act of defendant and, therefore, the state was relieved of liability. To determine whether a subsequent negligent act supersedes a prior negligent act, the trier of fact must look to the foreseeability of the subsequent act:
“Generally, the effect of an intervening negligent act is tested by determining whether or not it was such as might reasonably have been foreseen as a consequence of the claimed negligence of the original actor.”
It is clear from the trial court’s opinion that the court found that the highway department could not have reasonably foreseen that a driver who turned off the highway and was confronted with the barricade would then make a U-turn and, with his car being in control at all times, reenter the highway without stopping and exercising the proper lookout.
While there might be a reasonable difference of opinion as to whether the subsequent negligence of Mr. Timmons was foreseeable, it is clear that the finding of the trial court is not clearly erroneous. That finding, in light of the trial court’s superior position to judge the testimony, cannot be said to be contrary to the weight of the evidence presented.
Affirmed.
Comstock v. General Motors Corp. (1959), 358 Mich 163, 178.
Tile question of proximate cause is generally one for the trier of fact. See Comstock v. General Motors Corp., supra. Therefore, this court cannot reverse the finding by the trial court unless it is clearly erroneous. See GCR 517.1. | [
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Bronson, P. J.
On December 7, 1965, the defendant, William Phillips, was arrested and charged with the offense of armed robbery. MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797).
At his arraignment on December 8, 1965, the defendant, appearing in propria persona, attempted to enter a plea of guilty, which the trial court refused to accept. Subsequently, counsel was appointed to represent the defendant. On May 26, 1966, a sanity hearing was held and defendant was declared to be incompetent to stand trial. Pursuant to CLS 1961, § 767.27 (Stat Ann 1961 Cum Supp § 28.967), defendant was committed to Ionia State Hospital.
On July 12, 1968, the defendant was returned to St. Clair County Circuit Court, the court which had committed defendant to Ionia State Hospital in May of 1966. The court concluded that defendant was competent to stand trial. After some delay, trial was commenced on Decemeber 17, 1968, and the jury, following two days of trial, returned a verdict of guilty as charged. Defendant is presently serving a term of life in prison.
As stated previously, defendant was found to be incompetent to stand trial in 1966 and was committed to Ionia State Hospital pursuant to CLS 1961, § 767.27. In July, 1967, while defendant was confined in Ionia State Hospital, the Legislature passed MCLA 1970 Cum Supp § 767.27c (Stat Ann 1970 Cum Supp § 28.966[13]), which provides, in part:
“Notwithstanding any other provision of law, any person in confinement at the Ionia state hospital as of March 10,1967, having been previously committed for reasons of incompetency to stand trial under the provisions of section 27 prior to its repeal, shall a-s soon as practical be certified, to the probate court of Ionia county. If, in the opinion of the department of mental health, the patient has not regained competence to stand trial within 18 months from the entry of the order of commitment, the department shall certify its opinion, together with the detailed psychiatric report, to that court, which shall receive the certification and psychiatric report as the equivalent to a petition and physicians’ certificates under section 11 of Act No 151 of the Public Acts of 1923, as amended, being section 330.21 of the Compiled Laws of 1948, and shall proceed to determine the matter as provided in that section. In each case so certified, the court shall notify the guardian and one or more relatives if their addresses be known and the prosecuting attorney of the county from which the patient was originally committed as incompetent to stand trial, at least 20 days in advance of the date set for the hearing on the matter and supply the prosecuting attorney with a copy of the certification and psychiatric report. Such notices shall be by certified mail. If the probate court determines that the respondent is mentally diseased and enters an appropriate commitment order, a copy of the order shall be supplied to the criminal court having committed the patient as incompetent to stand trial. If the probate court determines that the respondent is not to be committed, it shall transfer the case to the criminal court which originally determined the respondent to be incompetent to stand trial and such court shall proceed as provided in subsection (8) of section 27a.” (Emphasis added.)
The quoted statute was applicable to the defendant in the instant case. B.y returning the defendant directly to the St. Clair County Circuit Court, without initially certifying the defendant to Ionia Probate Court, the prosecutor and the department of mental health failed to follow the statutory procedure. Although action inconsistent with the statute should not be encouraged, the defendant has failed to show any prejudice resulting from the procedure followed. A careful review of the record discloses that defendant received a fair trial.
Judgment affirmed.
Fitzgerald, J., concurred.
On March 10, 1967, this statute was repealed by PA 1966, No 266, § 4. See MOLA §§ 767.27a, 767.27b (Stat Ann 1970 Cum Supp §§ 2S.966[11], 28.966[12]). | [
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Peterson, J.
In the deluge of criminal appeals facing this Court, it is inevitably contended that the evidence before the trial court was insufficient to establish guilt beyond a reasonable doubt. People v. Williams (1962), 368 Mich 494. Where the matter was heard without jury, the convicted appellant hastens to add that the findings of the trial judge were “clearly erroneous”. People v. Hummel (1969), 19 Mich App 266.
Thus sayeth Green, adding that we are precluded from upholding the trial judge’s findings of fact since there were none. This, he claims, is in itself basis for reversal. So, once again, the failure of a trial judge, sitting without jury, to adequately comply with GCR 1963, 517.1, is before us. The rule provides:
“In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein. The clerk shall notify the attorneys for both parties of the findings of the court. Findings of fact and conclusions of law are unnecessary on decisions of motions except as provided in sub-rule 504.2. Requests for findings are not necessary for purposes of review. No exception need be taken to any finding or decision. Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”
Rules 1 and 785.1 make the General Court Rules applicable to criminal cases except where in conflict with other rules or statutes, and GCR 1963, 517.1 specifically has been held applicable to criminal cases in People v. Beaudoin (1967), 7 Mich App 461; People v. George Scott (1970), 21 Mich App 217. Fact finding, or the lack thereof, has since been the subject of frequent comment. See People v. Owens (1968) , 13 Mich App 469, 483; People v. Martinovich (1969), 18 Mich App 253; People v. Hubbard (1969) , 19 Mich App 407; Commercial Construction Co. v. Elsman Enterprises, Inc. (1970), 22 Mich App 238; and Papin v. Demski (1970), 383 Mich 561, 569, where the Court said:
“What has perhaps not been sufficiently stressed in our opinion is the need for the trial judge to make careful, considered findings of fact rather than shooting from the bench. In this case, as we read the opinion of the Court of Appeals, it gave consideration to the findings of the trial judge, insofar as such findings could be determined but, from its own examination of the evidence, it concluded that the trial judge had clearly erred.” (Emphasis supplied.)
In Nicpon v. Nicpon (1968), 9 Mich App 373, failure to make findings resulted in remand. In the criminal cases cited above in which there was a reversal, the reversal in each case was predicated not upon the absence of findings but upon the absence of proof in the record to substantiate one or more of the elements of the offense charged. Each tacitly holds, therefore, that a general verdict of guilty by the court may be affirmed where the elements of the offense are uncomplicated, there is some evidence tending to prove each element of the offense, and where it appears that the trial court must have found such evidence credible.
We do not remand in the instant case because that tacit assumption of Beaudoin, Martinovich, and Hubbard is borne out by the record here, and there was evidence tending to prove all of the elements of the offense. Green was convicted of attempted robbery, unarmed, the elements of which offense are few in number and relatively simple in nature. The crucial point of contention, as shown by the trial record and argument of counsel, was the identification of Green, turning upon an either/or view to be taken of the conflicting testimony of prosecu tion and defense witnesses. It would strain things considerably to call the trial judge’s brief statement a finding of fact, but it does, in the light of the trial record and arguments, leave no doubt that the judge did weigh the conflicting testimony about defendant’s identity in an act in which all elements of the offense occurred virtually simultaneously, and that the prosecution’s witnesses were believed. In this case we are able to conclude that there has been no miscarriage of justice and that the defective form of the findings does not warrant its reversal nor its remand for explicit findings. GCE 1963, 529.1; MOLA §769.26 (Stat Ann 1954 Eev §28.1096).
Defendant also contends that the prosecutor had a duty to indorse all known res gestae witnesses, and that failure to do so warrants reversal. The person in question, however, was an accomplice whom the prosecutor was under no duty to indorse or call. People v. Leroy Morgan (1970), 24 Mich App 660. Further, his identity was known to defendant who made no effort to call him and no request of the prosecution or the court that he be called. The matter cannot now he raised. People v. Turner (1952), 333 Mich 547.
Affirmed.
All concurred.
See Dauer v. Zabel (1967), 9 Mich App 176.
MCLA § 750.92 (Stat Ann 1962 Rev § 28.287).
MCLA § 750.530 (Stat Ann 1954 Rev § 28.798).
Of. the dissenting opinion in People v. Owens (1968), 13 Mich App 469, fn 7, p 483, as to situations in which the legal or factual nature of the elements of the offense are more complex.
“The Court: Thank you, Mr. Carter.
“Based on all of the testimony — and I have considered these things about relationships between witnesses and so forth as the quantum of proof is concerned — there has been a quantum on both sides. But I seem to find myself without a doubt that the quality of the proofs and the evidence on the part of the people is much more than sufficient to carry the burden of proof which they must carry in order to gain a conviction. And I say that partially because when one hears testimony — and a lot of testimony was volunteered — and it comes out so methodically and so much like other testimony, but then in some crucial areas — which people have not rehearsed or have not had an opportunity to think of — something odd comes out of everyone’s testimony, even though in essentials they are identical. When put to a test, people go off in all different directions when they have been rehearsed and they have not had an opportunity to rehearse what would be unrehearsable. And that is the questions asked by opposing counsel. And some of the questions that are asked by defense counsel brought some rather surprising answers.
“I do find myself sincerely convinced beyond a reasonable doubt of the guilt of Mr. Major.” (Court meant Mr. Green.) | [
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Danhof, J.
The plaintiff was employed by the defendant for the school year 1967-1968 as a probationary teacher. She was subsequently employed as a probationary teacher for the school year 1968-1969. On March 28, 1969, the director of personnel of the defendant board advised the plaintiff by letter that her services as a probationary teacher had not been satisfactory and that her employment with the defendant board would be terminated at the end of the school year on June 13, 1969. The letter assigned various reasons for her unsatisfactory performance and also stated: “This notice is furnished to you pursuant to the provisions of the Michigan Teachers’ Tenure Act”. The letter was received by the plaintiff on April 1, 1969.
Plaintiff was not reemployed by the board and appealed her dismissal to the State Tenure Commission which heard the matter and rendered a decision and order on September 30, 1969, directing the defendant to return the plaintiff to the classroom as a tenure teacher.
Thereafter, defendant appealed the decision and the order of the State Tenure Commission to the Circuit Court for the County of Wayne, which affirmed the State Tenure Commission’s decision on January 2, 1970. This appeal followed.
One matter not raised by either party is the jurisdiction of the State Tenure Commission to hear this dispute. The plaintiff, being a probationary teacher, did not have continuing tenure, and thus, no jurisdiction vested in the State Tenure Commission to hear the dispute. Only those teachers who have achieved tenure status have the right to appeal a decision of a controlling board of education to the State Tenure Commission, MCLA § 38.121 (Stat Ann 1968 Rev § 15.2021). Also, in Caddell v. Ecorse Board of Education (1969), 17 Mich App 632, 636, this Court stated: “Thus, since the board of education renders the final opinion in probationary teacher cases, its decision may be subject to a direct appeal to the circuit court.” Also, Weckerly v. Mona Shores Board of Education (1970), 28 Mich App 243. However, since both parties accepted the jurisdiction of the State Tenure Commission, and further, because this matter is before us on appeal from a decision of the circuit court, we shall proceed to dispose of this matter on its merits.
The controlling issue is whether the defendant school board complied with the provisions of MCLA § 38.83 (Stat Ann 1970 Cum Supp § 15.1983). This provision states:
“At least 60 days before the close of each school year the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory. Failure to submit a written statement shall be considered as conclusive evidence that the teacher’s work is satisfactory. Any probationary teacher or teacher not on continuing contract shall be employed for the ensuing year unless notified in writing at least 60 days before the close of the school year that his services will be discontinued.”
The record discloses that the closing date of school in 1969 was June 13. Thus, it is necessary that the defendant shall have provided the written statement at least 60 days prior to June 13, 1969. If the defendant failed to comply with this provision, the plaintiff was entitled to employment for the next school year, and having satisfactorily completed the two-year probationary period would have then attained continuing tenure.
The statute is clear that it is the defendant board which must provide the definite written statement, although the actual mechanics may be carried out by administrative personnel under the direction of the board. It is the defendant board which must make the decision concerning the plaintiff and then provide the statutory written statement at least 60 days before the close of the school year as to whether the plaintiff’s work has been satisfactory, and notify such probationary teacher not on continuing con tract at least 60 days before the close of the school year that his services will be discontinued.
From the defendant’s statement of facts it is clear that the defendant board failed to comply with the provisions of the statute. The defendant’s statement of facts indicate that at an executive session of the defendant board, following its regularly scheduled meeting on either March 10 or March 24, 1969, the personnel director discussed plaintiff’s case informally with the board members who were present. The board members then advised the personnel director to send the 60-day letter if the school administrators still viewed plaintiff’s performance as unsatisfactory. Neither the board members nor the personnel director regarded this as official action of any kind, it being understood by all that the official board action could only occur at a public meeting. MCLA § 340.561 (Stat Ann 1968 Rev § 15.3561) provides:
“All business which the board of any district is authorized to perform shall be done at a public meeting of the board and no act shall be valid unless voted at a meeting of the board by a majority vote of the members elect of the board and a proper record made of the vote. A meeting in which all members are present, with or without proper notice, shall be considered a legal meeting for the transaction of business. Meetings of the board shall be public meetings and no person shall be excluded therefrom. The hoard may hold executive sessions, hut no final action shall he taken at any executive session. The minutes of all board meetings must be signed by the secretary. In the absence of the secretary in any meeting, the president shall appoint a temporary secretary who shall sign the minutes of the meeting. In the absence of the president, the other members present shall elect a temporary president.” (Emphasis supplied.)
Therefore, the defendant board had not, at the time of the sending of the alleged 60-day notice, taken final action on the status of the plaintiff. It was not until the regular meeting of the defendant board on April 14, 1969, that a resolution was adopted terminating plaintiff’s employment effective June 13, 1969. There is no dispute that no further notification was given to the plaintiff subsequent to the defendant board meeting of April 14, 1969. It is true that the defendant board attempted to ratify the former action of the personnel director, but to allow this would be to allow the defendant to pull itself up by its own bootstraps. While we are aware that the decisions of a board of education are necessarily based upon reports and recommendations of the administrators and those in positions to evaluate such persons as the plaintiff, the statute is clear that it must be the controlling board which provides the written statement relative to the performance of a probationary teacher. Thus, since the defendant board did not make its decision until April 14, 1969, and by its own admission no notice was thereafter sent to the plaintiff, plaintiff was entitled to be employed for the ensuing school year as provided in MCLA § 38.83, supra. It further follows that plaintiff attained continuing tenure, and is entitled to the protection of the teachers’ tenure act.
Affirmed, costs to the plaintiff.
All concurred. | [
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] |
Per Curiam.
Defendant appeals as of right from a plea-based conviction of assault with intent to rob while armed. He was originally charged with armed robbery and pleaded guilty to the lesser offense. The people move to affirm.
Defendant’s only claim of error is that his conviction was invalid because the trial judge failed to advise him as to the elements of the crime to which he pleaded guilty. No such advice is necessary. People v. Harvey (1970), 24 Mich App 363.
The trial judge fully complied with all of the requirements of GrCR 1963, 785.3(2). Defendant was adequately advised of his rights and interrogation of the defendant by the trial judge as to the facts of the crime indicated clearly that the defendant was guilty of both the crime to which he pleaded guilty and the crime with which he was originally charged.
Motion to affirm is granted. | [
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Danhof, J.
Defendant was charged with armed robbery, CLS 1961, § 750.529 (Stat Ann 1969 Cum Supp § 28.797). A plea of guilty to the charge was accepted by the trial court and defendant was sentenced to a term of 4 to 16 years in prison. Defend ant has appealed as of right praying for a new trial on two grounds:
(1) That the trial judge did not comply with the requirements of CL 1948, § 768.35 (Stat Ann 1954 Rev § 28.1058), and GCR 1963, 785.3 in that, before accepting the defendant’s guilty plea and sentencing, he did not, by direct questioning of the defendant, ascertain the truth of the plea by establishing the crime and the defendant’s participation in its commission as required by People v. Barrows (1959), 358 Mich 267, and People v. Perine (1967), 7 Mich App 292;
(2) That the defendant was denied his right to be represented by counsel at the time of his sentencing.
The record shows that an armed robbery occurred on October 16,1967, for which defendant and a man named Greenblatt were subsequently arrested. On November 9, 1967, a preliminary examination was held at which the victim, night clerk in a motel, unequivocally identified the defendant as one of the two men who robbed him and as the one who shot him with a small gun that looked like a Beretta. The victim testified that the two robbers were in the office area two or three minutes and that he took a good look at both of them. On cross-examination by defendant’s counsel, the victim testified that he also worked as a full-time animal keeper at the Detroit zoo, that guns were a hobby of his, and that he was quite positive that one of the weapons used was a Beretta.
On November 22, 1967, defendant was arraigned. The information was read to him. It stated in part:
“Marshall Coates late of the city of Ferndale in said county, heretofore to-wit, on or about the 17th day of October A.D. 1967 at the said city of Fern-dale in said county, while armed with dangerous weapons or articles used or fashioned in a manner to lead the person so assaulted to reasonably believe them to be dangerous weapons, to wit: a .32-caliber automatic and a .22-caliber revolver, did assault one Thomas J. Watson and did feloniously rob, steal and take from the person of Thomas J. Watson or in the presence of said Thomas J. Watson certain property which may be the subject of larceny, to-wit: United States currency in the amount of $60, contrary to Section 750.529, of the Compiled Laws of 1948 as amended: M.S.A. section 28.797 as amended. (Maximum penalty — Life)”
The following colloquy then occurred:
“The Court: How do you plead?
“Mr. Coates: I stand mute.
“And I would like to ask for an adjournment because my lawyer is not here.
“The Court: Who is your lawyer?
“Mr. Coates: Arnold Fink.
“The Court: Is his appearance in the file?
“Mr. Pantel (Assistant Prosecuting Attorney): No.
“Your Honor, it is my understanding that he did represent the defendant at the examination level, but we do not have an appearance at the circuit court level.
“The Court: The court must direct the plea of not guilty, under the law, for you.”
On January 16, 1968, defendant with his attorney present pleaded guilty to armed robbery. The transcript reads in part:
“Mr. Fink: Your Honor, at this time, we wish to change our plea — the plea being standing mute, or not guilty at the arraignment on the information— we wish to plead guilty as charged.
“The Court: Is Mr. Arnold Fink your lawyer?
“Mr. Coates: Yes, he is, your Honor.
“The Court: And did you hear what he said, that you wished to plead guilty to this charge of robbery armed?
“Mr. Coates: Yes, I did.
“The Court: Has he explained to you that if I accept this plea, that it is possible that I could send you to state prison for any number of years up to life? Has he explained that to you?
“Mr. Coates: Yes, he has.
“The Court: Now, has anybody hurt you or
harmed you in any way since you have been taken into custody and then released on bond, and been charged, to induce you to make this plea?
“Mr. Coates: No, they haven’t.
“The Court: Did anybody tell you that if you plead guilty that you might get off easy in some way or get a reward?
“Mr. Coates: No, they haven’t.
“The Court: Now, do you plead guilty, then, because you are guilty of the charge of armed robbery? Is that correct?
“Mr. Coates: Yes, I do, your Honor.
“The Court: Do you understand that you do not have to plead guilty, that you can have a trial by jury and that Mr. Arnold Fink stands ready to represent you? And if you do not wish a jury trial, you can be tried by the court alone ? Do you understand that?
“Mr. Coates: Yes, I do.
“The Court: You understand that if I accept the plea of guilty, there will be no trial?
“Mr. Coates: Yes, I do.
“The Court: Have you fully advised him of all his constitutional rights, Mr. Fink?
“Mr. Fink: Yes, I have, your Honor.
“I would also like to state for the record, I have conferred with Mr. Coates last night, this morning, and this afternoon. I believe I have fully advised him of all his constitutional rights and may state emphatically that Mr. Coates is pleading guilty as charged for the sole reason that he is in fact guilty, so being advised of all his constitutional rights.
“The Court: Well, of course, Mr. Coates, if a person is charged with crime and if the person knows in their mind and heart that they are guilty of that crime, the first step in the right direction then, after having conferred with your counsel, is to plead guilty. I emphasize that the first step in the right direction is to do what you are trying to do at this time.
“I am going to accept your plea of guilty.
“And I am going to refer your case to the presentence investigating department called the Probation Department, for sentence February 26, at 2 o’clock in the afternoon.
“Do you understand that?
“Mr. Coates: Yes, sir.”
On February 26, 1968, the defendant failed to appear for sentencing and his bond was forfeited and a bench warrant issued. He was arrested on June 13, 1968, in Detroit, Michigan.
On July 3, 1968, defendant was sentenced. He was apparently in the process of changing lawyers and neither his trial counsel nor his appellate counsel was present.
Defendant admits in his brief to this Court that the trial judge “made every effort to establish the free and voluntary nature of appellant’s plea below”. Defendant does not even now claim that he was innocent of the charge to which he pleaded guilty. Nor is this a case of plea bargaining where defendant pleaded guilty to a lesser crime than that with which he was charged. Rather, defendant seeks a new trial based on omissions in the trial judge’s questioning of him which defendant thinks the appellate courts of this state require. Specifically, defendant contends that the trial judge did not establish a factual basis in support of the truth of the guilty plea hy direct questionng of the defendant.
The major case relied on in support of the position that a trial judge must question the defendant regarding the acts constituting the crime before accepting the guilty plea is People v. Barrows, supra. However, it is doubtful that that is what the Barrows case actually held. In that case the defendant was young, only 19, it was his first experience with a criminal court, his guilty plea was entered by his attorney, and the defendant was not directly questioned with regard to it by the judge. Further, he protested his innocence at every point when given an opportunity to do so and also protested his innocence on appeal.
On the authority of the Barrows decision, more is required than that the defendant agree with his attorney that it is expedient to plead guilty. There must be a reasonable ascertainment of the truth of the guilty plea. This is accomplished by the direct questioning of the defendant by the trial judge. The purpose of this direct questioning is to establish the crime and the participation therein of the defendant as a precaution against involuntary or induced false pleas of guilty and against subsequent false claims of innocence.
However, it is arguable that a trial judge has met the requirement of the Barrows case concerning direct questioning of a defendant for the purpose of establishing his participation in the crime when the trial court asks the defendant if he is pleading guilty because he is in fact guilty of the crime with which he is charged and the defendant answers yes. A decision on the merit of that argument is not essential to the disposition of the appeal before us.
Certainly the recent trilogy of Michigan Supreme Court cases, People v. Dunn (1968), 380 Mich 693, People v. Stearns (1968), 380 Mich 704, and People v. Winegar (1968), 380 Mich 719, make it clear that reviewing courts should be concerned with substance, not form, and the fundamental inquiry is whether there has been a miscarriage of justice. Specifically, we note that in the Stearns case use was made of the information which was read to defendant and the presentence investigation at which defendant cooperated to establish a factual basis in support of the truth of the guilty plea. Similarly, in the Winegar case, the Court held that there was no miscarriage of justice where the record showed that the court had conferred with the defendant in chambers and was convinced that he committed the crime, but there was no verbatim transcript of the colloquy between the court and the defendant regarding the circumstances of the crime.
The Perine case, supra, relied on by defendant was decided before the Dunn, Stearns, and Winegar cases. Additionally, it may be distinguishable factually since the opinion states that defendant’s attorney waived a reading of the information.
Since Perine, this Court has held that the absence of a recital on the record of the events in the defendant’s own words is not always fatal. People v. Seifert (1969), 17 Mich App 187. It has also held that we may properly look at the preliminary examination testimony in considering a claim that there was not a factual basis justifying acceptance of a plea of guilty. People v. Bartlett (1969), 17 Mich App 205.
In the case before us, after considering the eyewitness testimony at the preliminary examination, the specific wording of the information which was read to defendant at his arraignment, the essentially uncomplicated elements of the crime of armed robbery, and the direct questioning of the defendant by the court at the time defendant entered his plea of guilty, it is our opinion that the trial court had a substantial factual basis for accepting the proffered plea of guilty, and that defendant might well have been convicted upon a trial. Therefore, defendant is not entitled to a new trial.
Regarding defendant’s second issue, the right to counsel at the time of sentencing, this is grounds only for remanding for resentencing with counsel present, People v. Dye (1967), 6 Mich App 217, People v. Jones (1967), 6 Mich App 221. Therefore, we remand this case for resentencing with counsel for defendant present.
T. M. Burns, J., concurred. | [
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Danhoe, J.
Plaintiff brought this action seeking a declaratory judgment interpreting the uninsured motorist provision (Part IV) of an insurance policy issued by the defendant. The Secretary of State, representing the Motor Vehicle Accident Claims Fund, intervened as a plaintiff.
The plaintiff purchased a motorcycle and while operating it was injured by an uninsured motorist. The uninsured motorist provision in the policy contains the following exclusion:
“to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile”.
The motorcycle was not insured under the policy, and therefore, if a motorcycle is an automobile the exclusion applies and the defendant is not liable. On the other hand, if a motorcycle is not an automobile the exclusion does not apply and the defendant is liable. The trial court held that as the term is used in Part IV of this policy a motorcycle is not an automobile. We agree with the trial court.
In construing insurance policies we must give weight to the ordinary meaning of words and attempt to avoid strained interpretations. Edgar’s Warehouse, Inc., v. United States Fidelity & Guaranty Company (1965), 375 Mich 598; Huron Bowl, Inc., v. Security Insurance Company of New Haven (1968), 14 Mich App 62. We conclude that in its every day usage the term “automobile” does not include a motorcycle. See Webster’s Third International Dictionary.
The ordinary meaning of a word may be varied by the context in which it is used or by being specifically defined. After a careful examination of the policy we believe that if there was an intent to give an unusual meaning to the term “automobile” the policy does not clearly disclose that intent.
The term “automobile” is defined in Part Y of the policy as follows:
“With respect to the coverage afforded by this part, the word ‘automobile’ means a land motor vehicle, trailer or semi-trailer, not operated on rails or crawler treads, but does not mean a motorcycle or, except while actually upon public roads, a farm type tractor or equipment designed for use principally off public roads.” (Emphasis added.)
In Part I of the policy the term “owned automobile” is defined as follows:
“a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded.”
The three types of automobile contained in the term “owned automobile” are also defined in Part I:
“ ‘private passenger automobile’ means a four wheel private passenger, station wagon or jeep type automobile;
“ ‘farm automobile’ means an automobile of the truck type with a load capacity of fifteen hundred pounds or less not used for business or commercial purposes other than farming;
“ ‘utility automobile’ means an automobile, other than a farm automobile, with a load capacity of fifteen hundred pounds or less of the pick-up body, sedan-delivery or panel-truck type not used for business or commercial purposes * * * .”
The fact that the term “automobile” is defined as excluding motorcycles for the purposes of Part V might tend to indicate that when the term is used elsewhere motorcycles are included. However, the definitions found in Part I, which are applicable to Part IV, indicate that a motorcycle should not he considered an automobile. Thus, we conclude that the draftsmen of the policy have not clearly defined the term “automobile”.
Exclusionary clauses are to be strictly construed against the insurer. Francis v. Scheper (1949), 326 Mich 441; Michigan Mutual Liability Company v. Karsten (1968), 13 Mich App 46. The insurance policy was prepared by the defendant company and if defendant had intended to include motorcycles in the definition of “automobile” in Part IV of the policy it should have so stated.
In view of the foregoing an automobile as used in Part IV of the plaintiff’s insurance policy does not include motorcycles.
Affirmed.
All concurred. | [
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Lesinski, C. J.
Defendant was convicted of accepting money from the earnings of a prostitute, MCLA § 750.457 (Stat Ann 1954 Eev § 28.712), by the trial court sitting without a jury. The prosecution’s witness, Laverne Bradley, testified that defendant invited her to work as a prostitute for him, that she and defendant lived together from August 7, 1968 to August 29, 1968, and that she handed over virtually all of her earnings to defendant during that period. The witness also related that defendant paid the rent on their hotel room and purchased food and clothing for her during that period. Defendant took the stand and acknowledged that he and Miss Bradley had lived together for a time but denied that he encouraged her to engage in acts of prostitution or that he had accepted any portion of her earnings.
On appeal, defendant directs our attention to the witness’s testimony to the effect that defendant met the bills that the witness incurred while the pair dwelt under the same roof. The penal statute under which defendant was prosecuted provides:
“Any person who shall knowingly accept, receive, levy or appropriate any money or valuable thing without consideration from the proceeds of the earn ings of any woman engaged in prostitution, or any person, knowing a female to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of the prostitution of said prostitute, or from moneys loaned or advanced to or charged against her by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 20 years. And such acceptance, receipt, levy or appropriation of such f money or valuable thing, shall, upon any proceeding or trial for violation of this section, be presumptive evidence of lack of consideration.” (Emphasis supplied.)
Defendant argues that, in light of Miss Bradley’s testimony, the trial court’s finding of fact that Miss Bradley gave her earnings to defendant without consideration must be regarded as clearly erroneous. Defendant maintains that the statutory phrase “without consideration” may not be interpreted to mean “without adequate consideration” and that the furnishing of such necessities of life as food, housing, and wearing apparel constitutes such consideration as to take one’s conduct out of the ambit of the statute. We find persuasive the reasoning of the Missouri Supreme Court in State v. Harris (Mo, 1965), 396 SW2d 585. In construing a statute almost identical to the one before us, the Court noted when presented with facts substantially similar to the instant case, at pp 587-589:
“Under the concept of consideration as defined in refused Instruction No. A, if appellant gave anything of value to Sharon in return for all or part of her earnings from prostitution, he could not be convicted for he would not have received such sums without consideration. Anything of value would include clothing given by appellant, or food provid ed, or even the bed furnished on which the acts of prostitution were performed. This concept includes services as well as things and would include acts of one in bringing men to her for the purpose of engaging her services. Was this the concept of consideration meant and intended by the Legislature in what is now [RS Mo 1959, YAMS] § 563.040 when it used the words ‘without consideration V We think not.
# # *
“Certainly the Legislature did not intend by the terms of § 563.040 to exonerate those who agree with a woman to furnish her with the means to conduct her trade, namely, bed, board or clothing, in return for her agreement to turn over her earnings received from prostitution. An interpretation that it did so intend would excuse the bawdy house operator, the madam, and even the pimp or procurer, all persons at whom the statute obviously was directed. It would excuse appellant who took Sharon to one who operated a bawdy house and arranged with her to put Sharon to work, with bed, board and clothing furnished, in return for which, and as a part of the agreement placing Sharon in commercialized prostitution, appellant was to receive one-half of her earnings, with the other half thereof going to the madam. We conclude the Legislature did not so intend.
“We are of the opinion that the term ‘without consideration’ has reference to instances in which the consideration is not incidental to unlawful conduct which places the woman in prostitution or continues her therein. For example, if a known prostitute went into a store and made a purchase, or went to a physician and received medical attention (paying the storekeeper or physician with money obtained by engaging in prostitution), the goods or services would constitute consideration for the amount paid by the prostitute. The storekeeper or physician would not be guilty of accepting or receiving, without consideration, earnings of a woman received from prostitution, even though he knew of the woman’s trade and the source of her earnings. This hypothetical situation differs from one in which the articles or services are furnished in return for all or a percentage of the woman’s earnings from prostitution. The latter is an agreement which places her in or continues her in unlawful activity and has the effect of encouraging prostitution. In such a situation the amount to he received for the goods or services furnished to her has no relation to the value thereof hut rather is dependent upon and geared to the industry and vigor with which she plies her trade.”
When a defendant claims that any money accepted from a prostitute’s earnings was in consideration for such things as room and hoard, it becomes an issue for the trier of fact whether there was indeed consideration. People v. Podsiad (1940), 295 Mich 541. In any event, since the amount of money given to defendant, approximately $1,200, was clearly far in excess of the value of the living expenses of Miss Bradley for three weeks, the trial court could properly determine that payment of these funds was without any consideration.
Next we are told that defendant was deprived of the effective assistance of counsel in the proceedings below in that defendant’s trial counsel failed to produce two material witnesses whose testimony might have refuted that given by Miss Bradley. We are unable to say that counsel below did not call these witnesses as a matter of trial strategy. This Court has observed in People v. Joseph (1970), 24 Mich App 313, that defendant is not necessarily denied adequate representation when his attorney fails to call a witness.
“With regard to the failure to call witnesses, one court has said, ‘the failure to produce and put on the stand material witnesses is merely an error of judgment which does not constitute lack of effective representation of counsel.’ Hoffler v. Peyton (1966), 207 Va 302, 311 (149 SE2d 893, 899).”
Defendant also claims that the awarding of substantial witness fees to Miss Bradley at the conclusion of the trial violated his right to a fair trial. At the outset, it must be emphasized that the payment of witness fees under the statute is by no means made contingent upon the offering of testimony favorable to the prosecution. The witness is entitled to this compensation regardless of his testimony. Since this is the case, we fail to see how defendant can correctly assert that the witness was induced to give evidence damaging to defendant. Nor are we inclined to say that due process requires that a witness testifying on behalf of the prosecution be paid in advance of his testimony. A witness is less likely to give testimony influenced by the possibility of gain, the argument goes, if his compensation is in his pocket before he takes the stand. Chase v. Kalamazoo Circuit Judge (1908), 154 Mich 271, points out that the proper time for fixing witness fees in a criminal matter is after the amount due* the witness is clear. It would be, prac tically speaking, impossible for tbe court to assess witness fees in advance of the testimony, since it would be sheer conjecture as to how long a witness might have to be detained prior to trial and how long his presence might be necessary during the trial itself.
Defendant’s other assignment of error is so insubstantial as not to warrant discussion.
Affirmed.
All concurred.
See, also, People v. Harris (1942), 300 Mich 463, 466, where a conviction of this nature was upheld when it appeared that, while part of the payment of a prostitute’s earnings were in consideration of clothing, part of her earnings were handed over without consideration.
Defendant has not explained what testimony these witnesses could have given which could have aided him in his defense.
The witness was detained 100 days to insure her appearance at defendant’s trial. MOLA § 767.35 (Stat Ann 1954 Bev § 28.975) permits a trial court to commit material witnesses in criminal matters. Robinson v. Chambers (1893), 94 Mich 471, recognizes that commitment of a material witness by the court entitles the witness to the applicable per diem statutory witness fee for each day of detention. MOLA § 775.13 (Stat Ann 1971 Cum Supp § 28.1250) fixes the statutory witness fee at $12 per day. | [
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Per Curiam.
Defendant, Burl Glasgow, was tried without a jury in Wayne County Circuit Court on the charge of carrying a concealed weapon, MOLA § 750.227 (Stat Ann 1962 Rev § 28.424). Defendant alleged insanity as a defense. The trial was held on September 15, 1969, and resulted in a conviction. On October 7, 1969, the court sentenced the defend ant to a term of 3-1/2 to 5 years imprisonment. A delayed appeal was granted by this Court.
Defendant has had a long history of alcoholism and mental illness. He was being treated at Wayne County General Hospital. On November 5, 1968, appellant, after some drinking, left the hospital, went home, took his wife’s car, from which the license plates had been removed, took his father-in-law’s gun, which he put in his belt, and drove about aimlessly, ending up in a bar not far from his home.
A stolen car report was made on the vehicle to the Dearborn Police Department. Shortly after midnight, November 6, 1968, a patrolman observed the car in a parking lot of a bar with appellant sitting in the car. The appellant went into the bar and two police officers followed. They asked appellant his name and asked him to come with the officers. While leaving the bar, the police officer removed the gun from appellant’s waistband. There was no further word or act by appellant or the officers prior to this seizure.
The bulk of testimony heard went to the defense of insanity. The court found that the defendant did not establish the defense of insanity.
The appellant argues three issues on appeal. None of these issues were objected to at trial. The Court of Appeals will not consider questions on appeal that were not raised in the trial court. People v. Will (1966), 3 Mich App 330; People v. Camah (1967), 5 Mich App 655.
Affirmed. | [
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Quinn, P. J.
The Court of Claims granted defendant’s motion for summary judgment on the basis plaintiffs had failed to state a claim upon which relief could be granted. GCR 1963,117.2(1). Plaintiffs appeal.
About 6:30 a.m., September 15, 1969, Barbara Johnson was operating a Volkswagen automobile in the southernmost lane of the westbound lanes of US-10, a state trunkline four-lane divided highway. The pavement was dry and atmospheric conditions were normal In negotiating a curve to her right at a speed of 60 to 65 miles per hour, the. automobile Barbara Johnson was driving left the pavement for some reason not apparent from the record. In attempting to return to the paved portion of the road from the shoulder, which was six inches lower than the paved portion, Barbara Johnson lost control of the Volkswagen when its wheels struck the six inch concrete, and the accident ensued.
Alleging that the highway was defective because the shoulder was six inches lower than the pavement and that this condition had existed for six months, plaintiffs asserted liability against the state under MCLA § 691.1402 (Stat Ann 1969 Rev § 3.996[102]). Contending that the state was liable only for defects in the improved portion of the highway designed for vehicular travel, which did not include the shoulder, defendant asserted it was not liable.
The immunity of the state from tort liability arising out of the maintenance of state trunkline highways was established in McDowell v. State Highway Commissioner (1961), 365 Mich 268. To the extent prescribed in PA 1964, No 170 (MCLA § 691.1401 et seq. [Stat Ann 1969 Rev § 3.996(101) et seg.]), this immunity is waived. The statute must be strictly construed. Johnson v. Board of County Road Commissioners of Ontonagon County (1931), 253 Mich 465.
MCLA § 691.1402, supra, provides in part:
“The duty of the state and county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.”
The shoulders of a highway are designed for vehicular traffic although not of the same character as vehicular traffic on the paved portion of the highway. We read the statutory duty of the state with respect to the repair of shoulders to be that the state is obligated to maintain the shoulders in reasonable repair so that they are reasonably safe for their intended use as adjuncts of the paved portion of the highway.
Whether this duty has been met in the instant case cannot be determined by summary judgment. That determination will depend on, among other things, the extent of the six-inch height differential between the shoulder and the paved portion of the highway, was it located in one spot, on one side of the highway? What caused the differential, original construction, natural forces, or maintenance? What use was Barbara Johnson making of the shoulder and why? All of these are factual questions to be determined from testimony and other evidence.
Reversed and remanded for trial. Plaintiffs may recover the costs of this appeal.
All concurred. | [
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R. B. Burns, P. J.
This is an appeal from a judgment entered for plaintiff after a nonjury trial on a claim for labor and services in the amount of $6,859-.75.
The trial court made the following findings of fact:
Defendants Newbill and Rawley conduct a grocery business. In April of 1968 Newbill and Rawley contracted with defendant Kelly-Mitchell Construction Company to build an addition and a new building for them. Plaintiff was engaged in the business of installing ceramic tile and terrazzo floors. He entered into a subcontract with Kelly-Mitchell Construction Company to install a terrazzo floor in the building being built by the company for Newbill and Eawley. Plaintiff had doubts about the ability of Kelly-Mitchell Construction Company to pay their debts and he spoke to defendant Newbill who agreed to issue a check payable to both Kelly-Mitchell Construction Company and plaintiff. In reliance upon this promise plaintiff continued and completed the work.
When plaintiff sought payment from Kelly-Mitchell Construction Company he was told that there was no money forthcoming from defendants Newbill and Eawley. Newbill and Eawley claimed that payments by them to the construction company had already resulted in an overpayment and that they were not going to pay any more bills.
The defendant E.O.C., Inc., was formed by New-bill and Eawley and another person to finish the construction, but plaintiff had no dealings with the new corporation.
These findings of fact are supported by the record and are not clearly erroneous.
The trial judge held that defendants Newbill and Eawley were liable to the plaintiff on the theory that Newbill induced plaintiff to provide a substantial enhancement to the property by assuring him that compensation would be forthcoming upon completion of the work and that defendants Newbill and Eawley would be unjustly enriched at the expense of the plaintiff if plaintiff was denied recovery. The trial judge further ruled that the plaintiff had never had any dealings with R.O.C., Inc., and that R.O.C., Inc., was not liable.
In Calkins v. Chandler (1877), 36 Mich 320, 324, 325, Chief Justice Cooley stated:
“In many cases the test whether a promise is or is not within the statute of frauds is to be found in the fact that the original debtor does or does not remain liable on his undertaking; if he is discharged by a new arrangement made on sufficient consideration, with a third party, this third party may be held on his promise though not in writing; but if the original debtor remains liable and the promise of the third party is only collateral to his, it will in strictness be nothing more than a promise to answer for the other’s debt. But where the third party is himself to receive the benefit for which his promise is exchanged, it is not usually material whether the original debtor remains liable or not.”
This rule has been followed in a series of cases since that date. Bice v. Marquette Opera-House Building Co. (1893), 96 Mich 24; Michigan Slate Company v. Iron Range & H. B. R. Co. (1894), 101 Mich 14; Bryant v. Estate of Rich (1895), 104 Mich 124; McLaughlin v. Austin (1895), 104 Mich 489; Boyer v. Soules (1895), 105 Mich 31; Durgin v. Smith (1897), 115 Mich 239.
Newbill and Rawley received a direct benefit from the plaintiff and are liable for his bill. The plaintiff did not have any dealings with the R.O.C., Inc., and the R.O.C., Inc., is not liable to the plaintiff.
Affirmed. Costs to plaintiff.
All concurred.
See GOB 1963, 517.1. | [
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Per Curiam.
After a trial by jury the defendant was convicted of robbery armed, MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). He now appeals, contending that the trial court erred in refusing to instruct the jury on the defense of insanity.
A person is presumed to be sane. Once the defendant has introduced evidence of insanity however, the prosecution has the burden of proving that he is sane. People v. Krugman (1966), 377 Mich 559; People v. Garbutt (1968), 17 Mich 9. The question here is whether defendant’s testimony can be regarded as evidence of insanity.
Although the defendant was provided with a psychiatrist, he chose not to call him as a witness, and, consequently, there was no evidence on which a jury could determine the issue of insanity.
It was defendant’s testimony that he had received treatment, primarily for alcoholism, in several mental institutions, that from time to time he suffered from blackouts, and that he had no recollection of his whereabouts when this crime was committed.
Determination regarding the issue of insanity requires inquiry into an accused’s state of mind at the time a criminal act is committed. Pacts such as prior institutional confinements or lack of recall regarding specific incidents are of little assistance in determining an individual’s state of mind at one point in time. There was no evidence introduced on which a finding of insanity could he made; such a determination cannot be based on mere conjecture or speculation. Kregger v. Bannan (ED Mich, 1959), 170 F Supp 845. It was not error, therefore, for the trial court to refuse an instruction on the defense of insanity.
Affirmed. | [
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Per Curiam.
Defendant Winston Kirtley was tried by a judge sitting without a jury and convicted of possession of a stolen motor vehicle in violation of MCLA § 257.254 (Stat Ann 1968 Rev § 9.1954), which is part of the Motor Vehicle Title Act.
After the filing of briefs in this case, the Supreme Court released its opinion in People v. Morton (1970), 384 Mich 38, declaring that a charge of possession of a stolen vehicle brought under MCLA § 257.254, supra, unless coupled with a fraudulent intent to transfer title thereto, is not constitutionally permissible. Since this case involves a charge of possession of a stolen motor vehicle not germane to a fraudulent title transfer, the Morton rule, if applicable to this defendant, would require that the conviction be set aside.
The opinion in Morton, supra, does not indicate whether the decision there announced was to have retroactive application. The fact that this appeal was pending decision by this Court at the time Morton was released impels the conclusion that it be followed here.
The decision of the trial court is reversed without a new trial. | [
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Per Curiam.
Plaintiff wife was a passenger in an automobile operated by one Benhart in an easterly direction on a through highway. Benhart intended to make a left turn at the intersection. Defendant was driving his automobile in a southerly direction on an intersecting road. A collision occurred. Plaintiff wife alleged that her resulting injuries were caused by defendant’s failure to yield pursuant to the stop sign. Defendant alleged that Benhart caused the collision by cutting across the intervening northwest corner in making the left turn so as to enter defendant’s south-bound lane of travel and collide with defendant’s vehicle north of the intersection. Plaintiff husband sought damages for loss of his wife’s company and companionship. Following an adverse jury verdict, plaintiffs appeal, making two claims.
I. The trial court erred in refusing to grant a new trial on the basis that the court’s instructions failed to inform the jury that plaintiffs could recover if they found that plaintiffs’ driver had cut across and defendant had entered the intersection (i.e., if both drivers were partly at fault).
Examination of the instructions reveals that they fully, clearly and correctly covered the issues, including that which plaintiffs now raise:
“You will find for the defendant if the plaintiff was not injured or damaged or if the defendant was not negligent or if such negligence was not the proximate cause of the injuries or damages. * * # If you determine that the defendant did enter M-60, which is a state trunkline, from the South Bend Road without stopping, he would be guilty of negli gence as a matter of law, and if you further find that such negligence was the proximate cause of the ensuing collision, the defendant, Cleveland, would he liable to the plaintiff for such damages as have been shown by the evidence.”
At the conclusion of the instructions plaintiffs’ counsel stated on the record “I’d like to say, your Honor, it’s a fine charge, I have no exceptions at all.” Having failed to object at trial, plaintiffs may not now be heard to complain. GrCR 1963, 516.2.
II. The trial court should have granted a new trial on the basis that the verdict was against the great weight of the evidence.
A new trial may be ordered if the court in its discretion considers the verdict to be against the great weight of the evidence. GrCR 1963, 527.1(5). Davis v. Belmont Creamery Co. (1937), 281 Mich 165. An appellate court will interfere with the trial court’s exercise of its discretion in this regard only if abuse of its discretion is so plain that upon consideration of the facts upon which the trial judge acted an unprejudiced person can say that there was no justification or excuse for the ruling made. Patzke v. Chesapeake & O. R. Co. (1962), 368 Mich 190.
Examination of the record reveals that, both during his deposition and on trial, the defendant testified repeatedly that his car never reached the intersection, that at the time of impact it stopped north of the intersection. Believing this testimony, the jury could have determined these to be facts and have concluded therefrom that Benhart’s actions were the sole proximate cause of the collision. The trial judge did not abuse his discretion.
Affirmed. Costs to defendant. | [
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O’Hara, J.
Defendant was convicted by a jury of the crime of taking indecent liberties with the person of a female child under the age of 16 without committing or attempting to commit the crime of rape or the crime of sodomy or gross indecency. MCLA § 750.336 (Stat Ann 1954 Kev § 28.568).
On this appeal of right, defendant assigns as error the admission of testimony by Naomi Astolfi, age nine, and that of her brother Mark, age seven, relating to the acts allegedly perpetrated upon the girl by defendant.
Pursuant to statutory authorization, the trial judge examined the children in order to ascertain if they were intelligent enough to testify and had the sense of obligation to tell the truth. He determined that both met the requisite test. Absent some indication of palpable error in this determination, we do not disturb it. Tbe learned trial judge had the opportunity to appraise the competence of these children to testify. He examined them as the statute mandates. He found to “his own satisfaction” that they were competent. For us to substitute our judgment for his in this area reserved by statute to him would be an unwarranted interference with his proper prerogative. There was no error.
As his second ground for reversal of the verdict, defendant asserts the prejudicial waiver by trial counsel of what is characterized as certain of his constitutional rights, i.e., waiving production of two witnesses and failure to object to introduction of a statement made by defendant after his arrest. He relies on People v. Degraffenreid (1969), 19 Mich App 702.
From the time this Court enunciated the so-called “Degraffenreid rule”, it has become one of the most frequently cited and most misunderstood of our decisions. Degraffenreid should not be read by the bar to mean that because an objection could have been made or that some right was waived that this necessarily indicates incompetence of counsel or prejudice to the defendant. As the ones to whom the conduct of the trial and the choice of strategy have been entrusted, trial counsel may reasonably believe it advantageous, at times, to forego exercising certain rights for tactical reasons. On appeal it behooves us not to play the part of the Sunday morning quarterback and to second-guess him.
Usually omitted from appellants’ quotations of Degraffenreid is the limiting and cautionary lanquage that is often repeated in the opinion.
“Most post-conviction claims of disgruntled clients are indeed insubstantial.” Degraffenreid, supra.
We would not be understood by wbat we have said here to dilute the Degraffenreid doctrine. We mean rather that it should be carefully read before reversible error is claimed on the grounds of the incompetence of counsel. Such incompetence must be grave indeed to be raised to the constitutional level of no assistance of counsel.
Viewing the whole record here, it cannot be said that defendant did not have the effective assistance of counsel in the constitutional sense. There was sufficient, competent evidence, if believed by the jury, to find defendant guilty beyond a reasonable doubt. People v. Geddes (1942), 301 Mich 258.
Affirmed.
All concurred.
“Whenever a child under the age of 10 years is produced as a witness, the court shall by an examination made by itself publicly, or separate and apart, ascertain to its own satisfaction whether such child has sufficient intelligence and sence of obligation to tell the truth to be safely admitted to testify; and in such ease such testimony may be given on a promise to tell the truth instead of upon oath or statutory affirmation, and shall be given such credit as to the court or jury, if there be a jury, it may appear to deserve” (MCLA § 600.2163 [Stat Ann 1962 Rev § 27A.2163]).
“It’s easy to see on Sunday what play you should have called Saturday afternoon.” — Knute K. Rockne. | [
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Per Curiam.
This is an appeal from a grant of defendant’s motion for summary judgment in a suit to recover damages for injury to real property.
On March 12, 1970, plaintiffs filed an unsworn complaint alleging that in 1966 the defendant entered upon their land and converted some of the dirt and gravel to his own use. Plaintiffs were claiming treble damages under MCLA § 600.2920 (Stat Ann 1962 Rev § 27A.2919). Defendant filed a motion for accelerated judgment on the ground that the three-year statute of limitations * had run. Plaintiffs then amended their complaint adding an additional count alleging an implied contract. This attempt to come within the six-year statute of limitations for contracts was met by defendant’s motion for summary judgment, supported by affidavit, wherein he claimed that there were no material facts in dispute.
The trial court, noting that the statute of limitations would have been a good defense to count I, declined to rule on the motion for accelerated judgment, apparently because it felt that the addition of count II was an election to waive the tort and sue in contract. The court did, however, grant summary judgment to the defendant as to count II.
We need not discuss plaintiffs’ contention that the grant of summary judgment was improper, since in any event, it is clear that the defendant was entitled to accelerated judgment on both counts in the complaint.
The statute of limitations urged as a bar to count I provides:
“No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
# # #
“(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”
This statute remains applicable whether the action is based on a tort or a contract theory. In State Mutual Cyclone Insurance Company v. O & A Electric Cooperative (1968), 381 Mich 318, 324, 325, where the Court was faced with the same problem, it was said:
“It becomes apparent that the legislature expressed approval of this Court’s decision in Baats to the effect that it makes no difference what form of action the plaintiff institutes in seeking recovery for damages to property or person, but in all cases such action comes within the 3-year limitation rule.”
Accordingly, the court should have granted the defendant’s motion for accelerated judgment on the ground that both the contract and the tort action were barred by the running of the statute. In such case, the error in granting summary judgment, if any, was harmless. GCR 1963, 529.1.
For the foregoing reasons, the judgment of the lower court is affirmed.
Affirmed.
GOR 1963, 116.1(5).
MCLA § 600.5805(7) (Stat Ann 1962 Rev § 27A.5805[7]).
MCLA § 600.5807(8) (Stat Ann 1962 Rev § 27A.5807[8]).
GCR 1963, 117.2(3).
Baatz v. Smith (1960), 361 Mich 68. | [
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Per Curiam.
Plaintiff, formerly a part-time employee of the defendant, was awarded compensation for a fractured hip which occurred in a fall during the course of her employment as a practical nurse. The only dispute concerns the rate of compensation due plaintiff under the Workmen’s Compensation Act.
Defendant computes the compensation according to the following method under the act:
“When the department finds that the employee was employed specifically and not temporarily on a part-time basis, the average weekly wage shall be determined by multiplying the hourly rate or earning by the average number of hours worked in the part-time employment.”
Plaintiff was paid at a rate of $1.90 per hour and worked an average of sixteen hours per week. Therefore, under the above section, plaintiff’s average weekly wage would be $30.40.
Section 9 of the act provides:
“While the incapacity for work resulting from injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation of 66-2/3% of his average weekly wages.”
Defendant contends that since plaintiff’s average weekly wage computed under MCLA § 412.11 is $30.40, compensation under MCLA § 412.9 is 0.66-2/3 x $30.40 or approximately $20.13 per week.
The Workmen’s Compensation Appeal Board awarded plaintiff $27 per week, however, based upon the following section of the act:
“Compensation shall be paid for the duration of disability. Weekly payments shall in no event be less than $27.00 if there are no dependents.”
From the decision of the appeal board, we granted defendant leave to appeal to this Court.
Defendant contends that the $27 minimum weekly payment is applicable to full-time employees only. Otherwise, contends defendant, the provision may result in an award of compensation greater than the average weekly wage earned on a part-time basis. However, a reading of the statute does not reveal any language which would lead this Court to conclude that the $27 minimum applies to full-time employees only. The plain language of the statute is exactly to the contrary.
Although defendant’s hypothetical situation would appear to be possible under the act, that question is not before us at this time. In any event, we may not speculate as to the probable intent of the Legislature beyond the words employed in the act. The words employed clearly apply to both full-time and part-time employees. Had the Legislature desired to effect the interpretation now placed upon the act by defendant, it could easily have done so in simple language. It is not for this Court to add language to a clear and explicit statute. The decision of the Workmen’s Compensation Appeal Board is áffirmed.
MCLA § 412.11 (Stat Ann 1968 Rev § 17.161).
MOLA § 412.9 (Stat Ann 1968 Rev § 17.159).
MCLA § 412.9 (Stat Ann 1968 Rev § 17.159).
See City of Lansing v. Township of Lansing (1959), 356 Mich 641; Trbovich v. City of Detroit (1966), 378 Mich 79. | [
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Quinn, P. J.
On defendants’ motion, the trial court dismissed plaintiffs’ complaint which sought to restrain defendants from enforcing policy rule No 4116.5 adopted by the Board of Education on or about July 17,1969. Plaintiffs appeal.
Plaintiffs filed this action April 24, 1970. At that time, all plaintiffs were administrative employees of the school district who lived outside the geographical boundaries of the district. The policy rule involved reads:
“Professional personnel holding administrative positions in the Lansing School District shall reside within the school district.
“A professional staff member who now holds an administrative position and resides outside of the Lansing School District shall establish residence in Lansing School District not later than July 1, 1970, or his or her appointment will be terminated, except that this provision shall not apply to persons who held an administrative position prior to July 1,1962, and have continuously resided outside of the district since July 1,1962.
“The holder of an administrative position who moves his residence from within the Lansing School District shall have automatically terminated his appointment.
“The appointment of a professional staff member who resides outside of the Lansing School District to an administrative position or promotion of such staff member to another administrative position shall be temporary and shall he terminated if such professional staff member does not establish residence in the Lansing School District within one year from the date of the appointment.”
There is no similar rule for other employees of the school district.
Plaintiffs were on one-year contracts which expired June 30, 1970, and they did not have tenure. They were not rehired, and on the basis of Wedin v. Atherholt (1941), 298 Mich 142, defendants contend this case is moot. We do not so view it. Plaintiffs filed this action as employees. There is no indication in the record that they were not rehired for any reason except their failure to comply with the policy rule, the validity of which they contest. Plaintiffs had, and they still have, a justiciable issue.
In support of their appeal, plaintiffs first contend that the policy rule denies them due process. We read Williams v. Civil Service Commission of the City of Detroit (1970), 383 Mich 507, to hold otherwise. If the question of the beneficial effect of a residence requirement for public employees on public employment, services is reasonably debatable, substantive due process is not violated, Williams, supra. On this record, that question is reasonably debatable and we find no violation of substantive due process.
Plaintiffs next contend that the policy rule denies them equal protection because there is no reasonable justification for the cutoff date of July 1, 1962, and, hence, unwarranted discrimination occurs between persons employed before July 1, 1962, and persons employed thereafter. There is an indication in the argument before the trial judge that there is some justification for this cutoff date. It may bear some reasonable relation to the intended purpose of the residency rule. See Beauty Built Construction Corporation v. City of Warren (1965), 375 Mich 229, 235. The trial judge did not rule on the reasonableness of the justification, and on the present record we are unable to do so.
Reversed and remanded for factual findings and conclusions of law on the question of whether or not the cutoff date of July 1, 1962 bears some reasonable relation to the intended purpose of the residence policy rule. An affirmative finding will support the validity of the rule. If the finding is negative, the rule is invalid. Beauty Built Construction Corporation, supra. We do not retain jurisdiction.
Reversed and remanded without costs.
All concurred. | [
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Per Curiam.
Plaintiff, a lieutenant on the Livonia police force, soug'ht a writ of mandamus to compel defendants to appoint him to the position of captain in the police department. An order to show cause was issued by the Wayne County Circuit Court and a hearing was held. After all testimony was taken, the circuit court took the matter under advisement. A written opinion was issued on December 8, 1969, denying plaintiff’s petition for a writ of mandamus. Plaintiff appeals this denial.
Plaintiff established himself through the testing procedures of the Livonia Civil Service Commission as the leading candidate for the position of captain in the Livonia Police Department. This was accomplished at a time when no vacancy existed. When one of the three captains was promoted to the position of chief of police, plaintiff expected to be promoted to fill the vacancy.. The combination of a policy decision to restructure the command of the police department and a reduction in the budget allocation eliminated the vacant captaincy position. The record below discloses no irregularity in the procedure followed and no act of bad faith directed toward plaintiff.
The traditional rule of law has been that a writ of mandamus will not issue unless plaintiff can show he has a clear legal or contractual right to performance of a specific duty by defendant, and that, in turn, defendant has an uncontroverted clear duty to act immediately in the manner requested. Crossman v. Hanson (1966), 4 Mich App 98; Mardiros v. Secretary of State (1968), 11 Mich App 541; Iron County Board of Supervisors v. City of Crystal Falls (1970), 23 Mich App 319. Plaintiff is bound by a high degree of proof to establish his right that the writ of mandamus should issue. The record below shows that the city officials acted clearly within the scope of their power. The elimination of one captaincy position was motivated by fiscal allocations and public interest. This determination was well within the discretionary power of the city government officials. Fricke v. City of Grand Rapids (1936), 278 Mich 323; Cicotte v. Damron (1956), 345 Mich 528.
Plaintiff cites Savage v. City of Detroit (1916), 190 Mich 144, as controlling. However, unlike Savage, plaintiff here was not bypassed for someone less qualified. Rather, the position which plaintiff sought was eliminated. The elimination of the captaincy position must be seen not as an intent to fill the position, but instead an intent to abolish the vacancy altogether.
Plaintiff failed both to establish the legal right to the captaincy position and the legal duty of defendant to fill that vacancy as opposed to eliminating it. The trial court properly denied plaintiff’s petition for writ of mandamus.
Affirmed. No costs, this being a public question. | [
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Per Curiam.
Plaintiff, Huron Pipe & Supply Co., filed suit on November 14, 1968, in the St. Clair County Circuit Court alleging that from December 23, 1965, to February 25, 1966, it sold and delivered • to defendant, R & A Plumbing, Inc., eight boilers and accessories which defendant had ordered. Plaintiff’s claim was in the amount of $12,804.09 plus interest. Defendant then filed a third-party complaint on March 3, 1969, pursuant to GCR 1963, 204, against North American Construction Corporation, Walter J. Kassuba, Halmar Construction Corporation, and Edwards Engineering Company alleging, inter alia, that North American Construction Corporation entered into an agreement with Halmar Construction Corporation whereby it accepted full responsibility for the payment of the boilers and that Walter J. Kassuba, as an officer in North American Construction Corporation, entered into an agreement with Halmar Construction Corporation whereby he made himself personally liable.
Defendant, R & A Plumbing, Inc., on July 5, 1966, had filed a complaint against Halmar Construction Corporation, Walter J. Kassnba, and North American Construction Corporation in the Kalamazoo County Circuit Court seeking $34,922.95. At about the same time, defendant R & A Plumbing filed suit against Kassuba Development Corporation, Walter J. Kassuba, North American Construction Corporation, and others in the Superior Court of Allen County, Indiana, seeking $4,498.19. In both the Kalamazoo case and the Indiana case there was an additional count for foreclosure of a mechanic’s lien involving construction of certain apartment buildings in the township of Kalamazoo and in Port Wayne, Indiana.
Settlement negotiations were conducted between the parties in both the Indiana and Kalamazoo actions and on or about December 6,1967, the claims were settled in the amount of $11,500. At the time of this settlement, R & A Plumbing executed a release of all liens, all claims, and covenant not to sue discharging all claims it may have, known and unknown, against Walter J. Kassuba, North American Construction Corporation, and any of the related companies of Walter J. Kassuba.
North American Construction Corporation and Walter J. Kassuba filed the affirmative defense of release in this present action before the St. Clair County Circuit Court. They also filed a counterclaim against the defendant, R & A Plumbing, Inc., based upon the covenant not to sue. Plaintiff denies that the release applied to the transaction in question.
Third-party defendants, North American Construction Corporation and Walter J. Kassuba, filed a motion for accelerated judgment pursuant to G-CR 1963, 116, alleging that the claim of a third-party plaintiff was barred by the release and dismissal of a prior action with prejudice. The motion was based upon the records and files in said cause and an affidavit alleging personal knowledge. Attached as exhibits to the affidavit were the release and covenant not to sue. Defendant R & A Plumbing, Inc., did not answer the motion nor file any affidavits in opposition to the motion for accelerated judgment. The trial court, on December 1, 1969, denied the motion without an opinion.
GCR 1963, 116.3, expressly states the duty imposed on the trial court when confronted with a motion for accelerated judgment on the grounds of release.
“As to defenses and objections based upon sub-rule 116.1(5), the court may order immediate trial of any disputed questions of fact, and judgment may be rendered forthwith if the proof shows that the moving party is entitled to judgment on the facts as determined; or the court may postpone the hearing on the matter until the trial on the merits, and shall postpone the hearing if a jury trial has been demanded pursuant to right on or before the day of the hearing.”
The rule delineates the permissible methods of disposition of motions for accelerated judgment. The court may order an immediate trial on any dispute related to the validity of the release. After a finding of fact is made, “judgment may be rendered forthwith”. In the alternative, the court “may postpone the hearing on the matter until the trial on the merits”.
In the present case, the trial court summarily denied the motion. In light of the provisions set forth in the court rule, we remand this case to the trial court for proceedings in accordance with GCR 1963, 116.3. Costs to appellants. | [
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J. H. Gillis, J.
Defendant, Kenneth M. Sterbins, having been granted leave to appeal, comes before this Court challenging the legality of the conviction for assault with intent to rob and steal being armed. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). On March 30, 1967, the trial court accepted defendant’s plea of guilty to this offense and on April 13, 1967, sentenced defendant to incarceration for from 5 to 15 years. Essentially 2 issues are presented on appeal.
Defendant challenges proceedings in Florida which, under the provisions of the Uniform Criminal Extradition Act, MCLA § 780.1 et seq. (Stat Ann 1954 Rev § 28.1285 et seq.)* 2 , allowed for his transfer from that state to Michigan. Our careful review of the record reveals that this issue was first presented at the appeal level and, therefore, is not properly before us. People v. Jackson (1969), 17 Mich App 675; People v. Ray Clifton Smith (1969), 20 Mich App 243. So that there will he no confusion, however, we briefly point out that challenges to extradition proceedings must he made in the asylum state; upon submission to the jurisdiction of the charging state, opposition to the extradition comes too late. Pettibone v. Nichols (1906), 203 US 192 (27 S Ct 111, 51 L Ed 148)Ker v. Illinois (1886), 119 US 436 (7 S Ct 225, 30 L Ed 421) For the above reasons, this Court constitutes an improper forum for review of the extradition proceedings.
Defendant’s other major issue on appeal is that his plea of guilty must be vacated and set aside, as the plea was not made and accepted in accord with the provisions of GrCR 1963, 785.3(2). To support this argument, he alleges that his plea of guilty was compelled by the existence of his prior judicial admissions of guilt made under oath at his preliminary examination on March 9, 1967. These admissions of guilt, he contends, resulted from promises of leniency as to bond made to him by the arresting officers. Simply put, defendant asserts that had there been no inducements to admit his guilt at his own preliminary examination, he would have felt no compulsion to plead guilty when arraigned on the information on March 30, 1967.
In addition, defendant alleges that just prior to offering his plea of guilty, defense counsel assured him that the trial court would be lenient if a guilty plea was tendered.
It is the admission of guilt made at the time of offering the plea of guilty that may not be the product of compulsion. McMann v. Richardson (1970), 397 US 759 (90 S Ct 1441, 25 L Ed 2d 763). The assertion that such an admission was, in some manner, compelled carries with it the burden of proving such allegation. People v. Winegar (1968), 380 Mich 719 (cert den 395 US 971 [89 S Ct 2107, 23 L Ed 2d 759]). In seeking relief, a defendant’s mere allegation that he pleaded guilty because of a prior coerced confession or admission is not, with out more, sufficient to entitle him to an evidentiaryhearing on the matter. McMann, supra
In this case, however, defendant specified the form of the coercion, namely, admissions made in exchange for promises of leniency. The trial court, upon receipt of defendant’s “delayed motion to vacate and set aside plea” (filed in propria persona), conducted an evidentiary hearing so as to determine the voluntariness of defendant’s plea of guilty. At that hearing, the arresting officers were unable to recall that any promises of leniency as to bond were made to defendant prior to his judicial admissions at the preliminary examination or prior to his plea of guilty. In addition, defense counsel denied under oath that he had assured or promised any leniency to be forthcoming from the trial court at the time of sentencing. Although counsel admitted a promise to argue for and recommend leniency on behalf of defendant, he denied making any further guarantee in this regard. Defendant’s wife, stepmother, and grandmother, who testified at the hearing, were unable to state absolutely that promises of leniency were made; though it was their impression that leniency was warranted under the circumstances, they were unable to say with certainty that such had been promised.
In addition to these denials of promises by the above enumerated witnesses, the trial court had, for its consideration, defendant’s earlier denials, under oath, that any promises had been made to him. At his preliminary examination, prior to the first judicial admission of guilt, defendant was specifically asked by counsel for a codefendant:
“Counsel: Have you been promised anything to testify?
“Defendant: No, sir.
“Counsel: Have you been promised a dismissal of these charges if you would testify?
“Defendant: No, sir.
“Counsel: Within the scope of everything that you were asked, do you think it is to your advantage and benefit to testify now?
“Defendant: No, sir.”
After testifying at his preliminary examination, defendant was again asked:
“Q. For your testimony today, what have you been promised?
“A. I haven’t been promised anything.
“Q. Did anyone tell you that the charges would be dismissed if you testified?
“A. No, sir.
“Q. Anyone tell you that you’d probably get probation if you testified?
“A. No, sir.
“Q. You are under oath today; do you know what that means?
“A. Yes, sir.
“Q. What does it mean?
“A. It means if I lie or say something that isn’t true, it could be proven against me in perjury or—
“Q. Are you telling the truth right now?
“A. Yes, sir.
“Q. Are you telling the truth that no one has promised you a dismissal of charges?
“A. Yes, sir.
“Q. You have talked with the police officers in this case, is that right?
“A. I believe we all have, yes, sir.
“Q. And you have talked with the police officers in the counsel of your attorney here, is that correct?
“A. Would you please state that over?
“Q. Have you talked with the police officers when your attorney has been present?
“A. Yes, but I don’t believe that had anything to do with the charges in general.”
And upon offering his plea of guilty, defendant was asked by the trial court:
“The Court: Has anyone told you that the court would be lenient with you or might give you a break if you entered a plea of guilty here to this charge ?
“The Defendant: No, sir.
“The Court: Has anyone threatened you in any way in order to get you to plead guilty?
“The Defendant: No, sir.
“The Court: You understand that you are entitled to a trial by jury in this matter, and that you do not have to establish your innocence, but the State must prove you guilty beyond a reasonable doubt?
“The Defendant: Yes, sir.”
With all of this before it, the trial court rendered its opinion that “no testimony has been offered which convinces this court that defendant was ‘promised’ either a two-year sentence or probation”. The trial judge who conducted the hearing and heard the testimony was in the best position to judge the credibility of the witnesses in this matter. See G-CR 1963, 517.1. Our review of the record convinces us that upon conclusion of the evidentiary hearing there existed no greater reason for a trier of fact to believe defendant’s repudiation of the voluntariness of his plea than there was to believe his assertions when the plea was made. The defendant failed to carry his burden of proving the existence of coercion and there is, therefore, no basis on which this Court may hold that the findings of the trial court were erroneous or an abuse of discretion.
Briefly, in answer to defendant’s remaining issues on appeal, we point out that upon offering a plea of guilty there need be no express waiver of a jury trial. People v. Crow (1968), 13 Mich App 594 The record reflects that the defendant was informed that he was entitled to a trial by jury where his guilt must be proved beyond a reasonable doubt. In view of this, his appeal on this point is without merit.
In answer to defendant’s final argument, we observe that he offered his plea of guilty to assault with intent to rob and steal being armed. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). This plea was offered by way of defendant’s own narration regarding his criminal activity. Our review of the record, in accord with the provisions of People v. Dunn (1968), 380 Mich 693, convinces us that the trial court established that defendant pleaded guilty to what was in fact participation in criminal activity amounting to the offense on which he was subsequently convicted. There has been no showing of error in this regard.
In conclusion, therefore, we find no grounds on which the defendant’s plea of guilty should be vacated or set aside. As has so often been stated,
“ * * * the mere fact that a defendant, knowing his rights and the consequences of his act, hoped or believed, or was led by his counsel to hope or believe, that he would receive a shorter sentence or a milder punishment by pleading guilty than that which would fall to his lot after trial and conviction by jury, prevents no ground for the exercise of this liberal discretion.” People v. Miller (1896), 114 Cal 10, 16 (45 P 986, 987).
The decision of the trial court is, therefore, affirmed.
All concurred.
On June 5, 1967, defendant requested timely appointment of appellate counsel. On September 30, 1967, defendant, through counsel, filed with the circuit court a timely motion to withdraw plea after sentencing. The issue of promise for leniency was never precisely raised, though the matter was alluded to in paragraph 7 of defendant’s amendment to the motion filed October 6, 1967. On January 18, 1968, the circuit court rendered an opinion denying defendant’s motion. Appointed counsel (and substituted counsel) failed then timely to file a claim of appeal pursuant to GCR 1963, 803.1. The Court of Appeals, on February 3, 1970, granted defendant’s application for delayed appeal.
Defendant was initially charged with robbery armed. MCLA § 750-.529 (Stat Ann 1971 Cum Supp § 28.797). He pled guilty to and was convieted of the lesser included offense of assault with intent to rob and steal being armed. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). An “order to add a count to the criminal information— nunc pro tunc as of March 31, 1967”, was filed and entered April 14, 1967.
9 ULA, Uniform Criminal Extradition Act, § 1 et seq. The provisions of this act have been adopted both in Michigan (MCLA § 780.1 etseq.) and Florida (FSA §§ 941.01-941.30).
See 31 Am Jur 2d, Extradition, §§64 and 74.
The Supreme Court stated: “We hold, therefore, that a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for habeas corpus.” McMann v. Richardson (1970), 397 US 759, 771 (90 S Ct 1441, 1449; 25 L Ed 2d 763, 773).
Eor a more lengthy discussion concerning the “hopes” and “speculations” regarding sentencing made by defense counsel to an accused prior to his plea, see Judge Levin’s concurring opinion in People v. Gray (1970), 29 Mich App 301.
Cited with approval in People v. Goldman (1929), 245 Mich 578, 583; People v. Vasques (1942), 303 Mich 340, 342. | [
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Per Curiam.
Plaintiffs-appellants and defendants-appellees are adjoining landowners. At one time both properties were owned by one owner. For a good number of years in the past there had been joint use by the residents of the two properties of a path that runs from defendants’ property, across plaintiffs’ property, and thence to a lake. Plaintiffs in 1967 became unwilling to allow defendants to use the pathway and constructed a fence across their property. Defendants took down the fence and continued to use the pathway.
The lower court, sitting without a jury, found that defendants had a prescriptive easement and, thus, were entitled to use the pathway to the lake and to keep a small rowboat at the site.
Plaintiffs appeal, raising 11 issues, all of which condense to whether or not the trial court was correct in ruling that defendants had a prescriptive easement.
The basic elements for a prescriptive easement are:
(1) Continued and uninterrupted use or enjoyment;
(2) Identity of the thing enjoyed, and;
(3) A claim of right adverse to the owner of the soil, known to or acquiesced in by him. 8 Callaghan’s Michigan Civil Jurisprudence, Easements, §15; Village of Manchester v. Blaess (1932), 258 Mich 652.
Concerning the adverse claim of right requirement, there is a presumption that arises in certain circumstances. A conclusive presumption arises that the right originated in a grant when the use has continued for many years, as in the instant case, and no proof of whether the claimed prescriptive easement originated in written grant or oral permission is available. 8 Callaghan’s Michigan Civil Jurisprudence, Easements, § 15. The plaintiffs thus had the burden to show that the use was merely permissive. Engleman v. City of Kalamazoo (1925), 229 Mich 603, 607.
In this case, there was no proof as to whether the claimed prescriptive easement originated in written grant or oral permission, so a conclusive presumption arose that the right originated in a grant.
Plaintiffs further contend that the pathway easement is void because not mentioned in the title documents. There is ample authority for the proposition that, once established, an easement appurtenant passes by the deed of the dominant estate although not expressly mentioned in the instrument of transfer, and even without the word “appurtenant”. See Haab v. Moorman (1952), 332 Mich 126, 143, 144, and cases cited therein;
As for plaintiffs’ contention that the use of the pathway by defendants was not continuous, it is inherent that continuous use does not mean constant use. A pathway easement to a summer cottage is considered to be in continuous use if it is used merely seasonally. This use would be in keeping with the nature and character of the right claimed. Von Meding v. Strahl (1948), 319 Mich 598, 613. The finding of the trial court that the easement was in continuous use was not clearly erroneous. G-CR 1963, 517.1.
Therefore, the lower court should be, and hereby is, affirmed. Costs to appellees. | [
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J. H. Gillis, P. J.
Defendant, a gasoline service station operator, was convicted in Highland Park Municipal Court of violating the Weights and Measures Act of 1964, specifically of having in his possession for use an incorrect device for measuring retail sales of motor fuel, contrary to MCLA § 290-.608 (Stat Ann 1971 Cum Supp §12.1081[8]) and MCLA § 290.631(a) (Stat Ann 1967 Rev §12.1081 [31] [a]). From this conviction defendant appealed to Wayne County Circuit Court, and filed a motion to dismiss. Defendant contended that he was convicted under a statute which was unconstitutionally vague in its determination of “incorrect” measuring devices and improperly delegated legislative power to the Michigan Department of Agriculture and the executive branch of the Federal government.
On March 26, 1970, the trial court granted defendant’s motion to dismiss. The people’s application for leave to appeal was granted on August 24, 1970.
It has traditionally been held that a legislative body, after declaring a policy and fixing a primary standard, may confer upon an administrative agency the power to make and effectuate rules and regulations to promote the purpose and spirit of the enacted legislation. United States v. Grimaud (1910), 220 US 506 (31 S Ct 480, 55 L Ed 563); United States v. Shreveport Grain & Elevator Co. (1932), 287 US 77 (53 S Ct 42, 77 L Ed 175); Smith v. Wayne County Sheriff (1936), 278 Mich 91, 95; Anno., 79 L Ed 474; 1 Davis, Administrative Law Treatise, § 2.07 (1958). The state Legislature created the Department of Agriculture and authorized its director, by the very nature of his office, also to be the state Director of Weights and Measures.
MCLA § 290.608 (Stat Ann 1971 Cum Supp § 12-.1081 [8]) in pertinent part empowers that director to issue, from time to time, rules and regulations necessary to enforcement of the weights and measures act and that:
“These regulations shall include specifications, tolerances and regulations for weights and measures of the character of those specified in section 10, designed to eliminate from use, without prejudice to apparatus that conforms as closely as practical to the official standards, those that (1) are not accurate, (2) are of such construction that they are not reasonably permanent in their adjustment or will not repeat their indications correctly, and (3) facilitate the perpetration of fraud. The specifications, tolerances and regulations for commercial weighing and measuring devices, together with amendments thereto, as recommended by the national bureau of standards and published in national bureau of standards handbook 44 and supplements thereto, or in any publication revising or superseding handbook 44, shall be the specifications, tolerances and regulations for commercial weighing and measuring devices of this state, except as specifically modified, amended or rejected by a regulation issued by the director. For the purposes of this act, apparatus shall he deemed to he ‘correct’ when it conforms to all applicable requirements promulgated as specified in this section; other apparatus shall be deemed to be ‘incorrect’.” (Emphasis supplied.)
The state Legislature has directed that the specifications, tolerances, and regulations for commercial weighing and measuring devices enacted by the director should conform to the specifications published in the National Bureau of Standards Handbook 44 and supplements thereto. However,
“[t]he ultimate and controlling policy decision— as to whether there shall be uniformity of Federal-state regulation in the field — rests always with the Legislature and it does not in any vicious sense abdicate its legislative judgment or authority”. State v. Hotel Bar Foods, Inc. (1955), 18 NJ 115, 125 (112 A2d 726, 732). See, also, L. Jaffe, An Essay on Delegation of Legislative Power, 47 Colum L Rev, 561, 564 (1947).
The exigencies of modern government have increasingly dictated the use of general legislative policies which are further interpreted by detailed administrative rules and regulations. This is especially true in specialized areas which are primarily the subject of Federal regulation. Note, 33 Mich L Rev 597, 600-604 (1935). Our Legislature, as others, has wisely guided its administrative agencies towards the adoption of conforming state-Federal regulations. People v. Sell (1945), 310 Mich 305. See also State v. Hotel Bar Foods, Inc., supra; Yelle v. Bishop (1959), 55 Wn 2d 286 (347 P2d 1081); Horner’s Market, Inc. v. Tri-County Metropolitan Transportation District of Oregon (1970), 2 Or App 398 (467 P2d 671); Thorpe v. Mahin (1969), 43 Ill 2d 36 (250 NE2d 633).
Defendant argues that the authority to determine “incorrect measuring devices” was re-delegated by the National Bureau of Standards to the National Conference on Weights and Measures, a private agency. That is not our view of the meaning and adoption of handbook 44 and the regulations therein. The specifications, regulations, and tolerances for measuring devices used in the retail sale of motor fuel became part of the National Bureau of Standards’ regulations, not automatically because of the fact of adoption by the National Conference on Weights and Measures, but as a result of the approval of the national bureau. The bureau must be assumed to have exercised its judgment as to the propriety of giving such approval, just as it did with respect to the other portions of the regulation. Seale v. McKennon (1959), 215 Or 562 (336 P2d 340).
Secondly, defendant contends that the statute in issue requires the adoption of “handbook 44 and supplements thereto, or # * * any publication revising or superseding handbook 44” as the state standard, and that such a mandate is an illegal delegation of legislative power to set weights and measures standards in futuro.
The people rightly contend that the trial court, in ruling MCLA § 290.608 (Stat Ann 1971 Cum Supp §12.1081 [8]) unconstitutional, overlooked a settled rule of statutory construction:
“In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:
“If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable”. MCLA § 8.5 (Stat Ann 1969 Rev § 2.216).
The Federal standard for improper measuring devices. used in the retail sale of motor fuel was delineated in the National Bureau of Standards Handbook 44. This handbook was incorporated by reference and became the enforceable standard in Michigan. It has consistently been held that statutes which incorporate existing Federal statutes, rules, and regulations by reference are valid and constitutional. G-enerally: City of Pleasant Ridge v. Governor (1969), 382 Mich 225; specifically, the Federal standard for weights and measures: McGeorge v. Walker (1887), 65 Mich 5, 8; Parker, Webb & Co. v. Austin (1909), 156 Mich 573, 578. In accord: Brock v. Superior Court of Los Angeles County (1937), 9 Cal 2d 291 (71 P2d 209); State v. S & W Waldman, Inc. (1960), 61 NJ Super 403 (160 A2d 677); Seale v. McKennon, supra; New York State Food Merchants’ Association v. Grant (1970), 63 Misc 2d 550 (312 NYS2d 600).
However, it has likewise been the majority holding, and the rule in Michigan, that adoption by reference of future legislation and rules are unconstitutional. Lievense v. Unemployment Compensation Commission (1952), 335 Mich 339; Brock v. Superior Court, supra; State v. Urquhart (1957), 50 Wn 2d 131 (310 P2d 261); Anno., 133 ALR 401; Mermin, “ ‘Cooperative Federalism’ Again: State and Municipal Legislation Penalizing Violation of Existing and Future Federal Requirements: II”, 57 Yale L J 201 (1947); 1 Sutherland Statutory Construction (3d ed), § 310.
In any event, we need not pursue the issue further since we are satisfied that even if the provision “ * * * handbook 44 and supplements thereto, or in any publication revising or superseding handbook 44 * * * ” were deemed unconstitutional, 6 the remainder of the statute would properly stand as severable. MCLA § 8.5 (Stat Ann 1969 Rev § 2.216); City of Detroit v. Sanchez (1969), 18 Mich App 399; Dawson v. Hamilton (Ky, 1958), 314 SW 2d 532. In the instant matter, the state did not prosecute defendant under the excised phrase. It may be assumed that had the state proceeded under this phrase alone, the prosecution would have failed. State v. Hotel Bar Foods, supra, p 734; Dawson v. Hamilton, supra, p 536. However, the prosecution in this instance was properly brought for violation of weights and measures standards as "outlined in handbook 44, a standard then in existence when incorporated into and made part of MCLA § 290.608 (Stat Ann 1971 Cum Supp § 12.1081 [8]).
The trial court’s order of dismissal is reversed and the case is remanded for proceedings not inconsistent herewith.
All concurred.
MOLA § 285.1 (Stat Ann 1967 Rev § 12.1).
MCLA § 290.606 (Stat Ann 1967 Rev § 12.1081[6]).
Congress is empowered to establish and adopt standards of weights and measures, US Const, art 1, § 8(5). The Bureau of Standards, under the Secretary of Commerce, is charged with the obligation of implementing national standards and enforcing the same, 15 USC §§ 271-278e (1946); the director of the bureau is empowered to publish and promulgate rules and regulations pursuant thereto, Bureau of Standards, 15 USC §§ 271-278e (3964); 15 CUB §§ 200.100-200.107 (1967).
The defense contends that the people raise the issue of sever-ability for the first time on appeal, and therefore, this Court should not consider it. Under normal circumstances, that would be the determination. However, to prevent manifest injustice and litigious arguments, we shall consider the issue. Hunt v. Deming (1965), 375 Mich 581.
We do not decide the question of whether or not this phrase is an unconstitutional delegation of legislative power. Defendant was charged with violating the standards outlined in the National Bureau of Standards Handbook 44, and it is only that standard with which we are concerned. At some future date, however, we may be required to address ourselves to this phrase, and then, may well declare it unconstitutional. The Legislature may not abdicate its legislative authority to determine state weights and measures standards to a private or congressional agency without maintaining its ultimate authority to set the primary standard. | [
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Per Curiam.
Defendant Earl Smith was convicted by a jury of armed robbery. MCLA § 750-.529 (Stat Ann 1971 Cum Supp § 28.797). He appeals as of right alleging the trial court committed reversible error by denying a motion to suppress evidence of identifications of defendant made by witnesses to the robbery.
The record shows that three armed men entered a grocery store, forced the store employees into a rest room, and then emptied the safe in the manager’s office. Defendant was alleged to have been the man who guarded the rest room door during the robbery.
Defendant argues that pretrial identification procedures irreparably tainted both the lineup and the in-court identifications made by the witnesses who were forced into the rest room.
A separate record was made on the issue of the admissibility of the eyewitness identifications (see People v. Hutton [1970], 21 Mich App 312; People v. Childers [1969], 20 Mich App 639), where it was shown that six witnesses identified defendant from a set of eleven photographs produced by the police. The prosecution concedes on appeal that one of these photographs was the product of an illegal search and seizure stemming from an earlier unrelated police investigation. It was a Polaroid snapshot depicting defendant in the company of two women in a casual social setting. Defendant was also pictured in one of five police “mugshots.” The remaining photographs were Polaroid snapshots of various other people. Pour witnesses stated they made identification from the set of. “mugshots” first, and were allowed to testify at trial. One witness who made identification from the Polaroid snapshot did not testify pursuant to stipulation by the prosecutor. The remaining witness was allowed to testify as to other matters and then made in-court identification of defendant without objection by defense counsel. All witnesses who made identifications at trial stated they could have done so regardless of the display of photographs.
In Simmons v. United States (1968), 390 US 377, 384 (88 S Ct 967; 19 L Ed 2d 1247, 1253), the Supreme Court held that convictions based on eyewitness identification at trial following a pretrial identification by photograph would be set aside on that ground only if the photographic identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”.
Applying that standard to the case at bar, we find the trial court was correct in ruling that there was little chance that the procedure utilized led to misidentification of defendant. The witnesses were able to see the robber, later identified as defendant, for several minutes during the holdup. They viewed the sets of photographs separately and made separate identifications at the lineups. Their identification of defendant was unequivocal, notwithstanding extensive cross-examination. No evidence was presented that would indicate that the witnesses were told anything about the investigation, or which persons in the photographs were under suspicion. The use of the illegally seized photograph had no influence on the witnesses since those who testified made identification from the “mugshots” prior to viewing the snapshot. Under these circumstances, we find no error in allowing such evidence to go to the jury. People v. Noble (1970), 22 Mich App 499; People v. Nugent (1969), 21 Mich App 58.
We also find no merit in defendant’s claim that he was denied counsel at the lineups pursuant to United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). The detective in charge of the lineups testified he read defendant a statement explaining the right to have counsel of his own choice or at public expense present at such stages of the proceedings and that defendant stated he wished to proceed without counsel. This statement was introduced into evidence and defendant admitted signing it. The trial court could properly find defendant waived his right to counsel. See People v. Hartwick (1967), 8 Mich App 193; People v. Matthews (1970), 22 Mich App 619.
Affirmed. | [
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Per Curiam.
A jury convicted defendant of armed robbery, MCLA § 750.529 (Stat Ann 1971 Cum Supp §28.797). He was sentenced, and on appeal he raises four issues, three of which were not preserved for appellate review.
Insufficiency of the evidence at the preliminary examination may not be raised for the first time on appeal, People v. Willis (1965), 1 Mich App 428, as defendant seeks to do here.
In order to preserve for appellate review the issue of the verdict being against the great weight of the evidence, a motion for new trial is required. People v. Jagosz (1931), 253 Mich 290. No such motion was made in this case.
Failure of defendant to object at trial to the identification procedure precludes our review of this issue. People v. Coleman (1968), 14 Mich App 515.
This record demonstrates no clear injustice, People v. Jackson (1969), 17 Mich App 675, and we decline further comment on the foregoing issues.
With respect to defendant’s asserted error on the failure of the trial court to instruct the jury that mere presence at a crime does not constitute one a party to the crime, no request for such an instruction was made; hence, no error. People v. Nawrocki (1965), 376 Mich 252.
Affirmed. | [
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Peterson, J.
These consolidated cases involve the tax exemption provision of the State Housing Development Authority Act, PA 1966, No 346 (MCLA § 125.1401 et seq.; Stat Ann 1970 Cum Supp § 16.114[1] et seq.), which was construed by a panel of this Court in Colonial Townhouse Cooperative, Inc. v. City of Lansing (1970), 25 Mich App 24, and with which decision we are unable to agree.
The title of the act reads as follows:
“An act to create a state housing development authority; to define the powers and duties of the authority; to establish a housing development revolving fund; to authorize loans to qualified nonprofit sponsors and municipalities; to provide tax exemption; and to authorize payments in lieu of taxes by nonprofit housing corporations.” (Emphasis supplied.)
Several incentives were provided by the legislature to the construction of low and moderate income nonprofit housing, including a property tax exemption with service fee payments in lieu thereof. The pertinent portion of § 15 reads as follows:
“When the governing body of any municipality in which a housing project of a nonprofit housing corporation or consumer housing cooperative is or will be located by resolution finds that the housing project is or will be financed with a federally-aided mortgage, or with a loan from the authority under chapter 2, to serve low income or moderate income persons, then the housing project shall be exempt from all taxes of the state, or any city, village, township or other political subdivision or public body or taxing district.”
Plaintiffs sought exemption under § 15 for tax year 1968, applying to the municipalities and also to the boards of review during March. Their requests being unsuccessful, actions in mandamus were brought. Motions for summary judgment and accelerated judgment were filed by defendants and granted by the circuit court. The question is whether the statute gives a municipality a discretionary power to grant tax exemptions to such housing developments meeting the statutory requirements if and when it chooses to exempt them, or whether the legislature itself has granted a tax exemption and merely substituted an exemption certification by the municipal body for the usual assessor’s determination of exempt status. The first is legislative and discretionary and beyond the scope of mandamus; the latter is administrative, imposing a clear legal duty to act for which mandamus will lie. Toan v. McGinn (1935), 271 Mich 28; Leininger v. Secretary of State (1947), 316 Mich 644. In Colonial, supra, a panel of this Court reached the first conclusion and affirmed the denial of mandamus. We differ.
It seems to us that the clear language of § 15 and of the act’s title is to state a legislatively created exemption. Grammatically and legally, the words “shall be exempt” refer to property found to meet certain eligibility qualifications. The language is mandatory and not permissive. It nowhere indicates that a municipal governing body “may” grant an exemption, nor does it set any standards or tests for the exercise of legislative discretion. The statute refers to a finding of eligibility by “resolution”, whereas municipal bodies exercise legislative powers by ordinance.
If, instead of reading
“When the governing body of any municipality * * * by resolution finds * * * [statutory facts] * # * then the housing project shall be exempt * * * ”,
the act had read
“When the assessing officer of any municipality * * * finds * * * [statutory facts] * * * then the housing project shall be exempt * * * ”,
could any different conclusion be read as to the Legislature’s intent? Regardless of who makes the finding, the scope of that finding is purely factual, viz., (1) that there is or will be such a project within the municipality; and, (2) that the project meets certain requirements plainly stated. This hardly constitutes a grant of discretionary authority. Con strued as a legislative grant of exemption, with a purely fact-finding function imposed on the municipal body, the language of § 15 is consistent with the title of the act which states a purpose “to provide tax exemption”; i.e., it is the Legislature which grants the exemption by the act, and not the municipal body by a determination that a particular taxpayer meets the legislatively stated conditions for exemption.
We think the language of the statute is plain. Beyond this, we find merit to the proposition rejected in Colonial, that to hold otherwise would give municipalities an arbitrary authority to grant or withhold the exemption given by the Legislature. In Colonial, the Court said, p 27:
“The statute involved is a section of the state housing development act, the purpose of which was to assist in the supply of low or middle income housing. The statute does not require that the governing authority adopt the necessary resolution for a project which qualifies under the act for tax exemption. If it did, it would remove from the municipal authority control over its revenue. The statute envisions a judgment on the part of the municipal authority between the loss of tax revenue by granting the exemption and the need for and benefit of a low or middle income project. This does not constitute a grant of arbitrary authority to grant or withhold the benefit of tax exemption. Nor does this case involve an arbitrary exercise of the authority granted, as would be the case if exemption was granted to one qualified project and denied to another.”
This must be read as giving the municipality independent authority to determine either that all qualified projects would be granted exemption, or that none would be exempt since tbe uniformity clause of the Constitution would prevent exemption for some but not for all. One difficulty with this proposition is that nowhere in the title to the act or in § 15 is there language suggesting that the municipality was intended to have the power to exercise such a policy judgment. Further, the rationale that such must have been intended in order to preserve to “the municipal authority control over its revenue” assumes a power which does not exist in municipalities as to the ad valorem property tax. Taxability and exemption are historically matters for the Legislature and no instance is found in the general property tax act, PA 1893, No 206, as amended (MCLA § 211.1 et seq.; Stat Ann 1960 Rev § 7.1 et seq.), or related statutes in which local units of government are given authority to determine matters of taxability and exemption.
Holding that the statute grants no legislative discretion in the municipal governing bodies but only a ministerial duty of fact finding within clearly stated limits, we reverse and remand for further proceedings consistent herewith.
All concurred.
We find no merit in the contention of defendants that application for exemption had to be made before December 31, 1967. It is true that taxable status and valuation are fixed as of the “tax day” but the tax roll is not final until after the last meeting of the board of review. MOLA §§ 211.30, 211.31 (Stat Ann 1970 Cum Supp §§ 7.30, 7.31). We also reject the contention that plaintiffs, having gone to the board of review and appealed to the State Tax Commission, are estopped to sue or are somehow bound by an election of remedies theory.
Query: Whether the Legislature may delegate any authority, arbitrary or otherwise, to create exemptions? See notes 3 and 4.
Such a construction would solve the uniformity problem only within a municipality. County and state uniformity would be impossible if exemption could be created locally.
It appears likely that taxability and exemption of property is not only historically but also constitutionally a matter of legislative control. The people of Michigan by their Constitution have mandated the legislative imposition of an ad valorem property tax. Article 9, § 3, of the Constitution of 1963 provides: “The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law.” (Emphasis supplied.) We do not decide the question of whether the Legislature could constitutionally delegate the power to exempt to municipalities, as in the construction of § 15 adopted by Colonial, the question not having been raised in that case or this. Cf. Colony Town Club v. Michigan Unemployment Compensation Commission (1942), 301 Mich 107; City of Detroit v. Detroit Commercial College (1948), 322 Mich 142. | [
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Per Curiam.
The defendant was charged with first-degree murder of Lewis Mitchell. After a trial by jury he was convicted of manslaughter. MCLA § 750.321 (Stat Ann 1954 Eev § 28.553). He now appeals raising three issues.
In August of 1968 William Walker and Lewis Mitchell were driving in Walker’s Cadillac when they saw the defendant in another car. Walker pulled into a corner gas station and the defendant followed. Walker testified that the defendant left his vehicle and approached Walker’s car complaining to the deceased, Lewis Mitchell, about $5 which had not been paid. The deceased put his hands on the dashboard and at this time the defendant began shooting with a .45-caliber gun which he was carrying in his hand. Several shots entered Mitchell and Walker was also wounded. Walker then drove to General Hospital in Hamtramck where Mitchell died shortly thereafter.
The defendant’s theory was self-defense. He testified that his weapon was concealed and that he drew it and shot only after he saw Walker and Mitchell draw pistols on him. He stated that after he shot he became frightened and ran to his car.
At trial William Walker testified that, when the deceased saw the defendant’s car, the deceased stated that he was frightened because he was not supposed to be in the vicinity. The defendant contends that this testimony was admitted erroneously, because it is hearsay.
When the declarant’s state of mind is relevant a statement of a presently existing mental state is admissible as an exception to the hearsay rule. In this case the declarant’s mental condition was relevant because the fact that he was frightened tends to negate any idea that he was the aggressor.
Defendant contends that the trial court committed reversible error in not granting a mistrial when the prosecutor asked the witness whether he was afraid of anything. The trial court sustained the defendant’s objection to the question and instructed the jury to disregard it. We do not believe that the remark was so prejudicial that, standing alone, it requires a new trial.
Defendant’s final contention is that the trial court erred in permitting rebuttal testimony on a collateral matter. The prosecutor called as a rebuttal witness the brother of the deceased. Defense counsel moved that his testimony be barred because it concerned a collateral matter occurring three days before the murder. The court denied this motion and the witness then testified that three days before the incident defendant had threatened him with a gun and also stated that he would kill the deceased.
Evidence of prior threats is admissible when the defendant has raised an argument of self-defense. People v. Ake (1961), 362 Mich 134. Therefore, we find no reversible error.
Affirmed. | [
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McGregor, J.
Plaintiff appeals from a jury verdict of no cause of action, rendered on February 16, 1970, on his complaint of false imprisonment by defendant Cottrell, Village Administrator* of Wolverine Lake.
On June 11, 1968, plaintiff went to the village hall to complain about the oiling of the road in front of his home. Upon entering the hall, he proceeded directly into Cottrell’s office, where a face-to-face confrontation and heated discussion ensued.
Testimony at trial established the following events and circumstances:
Plaintiff placed both his hands on Cottrell and pushed him back three or four feet. Cottrell pulled out his wallet, displayed a badge of some sort (although it was not a police badge), and then informed plaintiff that he was under arrest. Cottrell, as well as the secretary and the village treasurer, denies this. Plaintiff then left the building. Later, Cottrell asked village policeman Darlington to bring the plaintiff back to his office so that they could resume their discussion. Darlington went to the plaintiff’s home and offered to take him to the village hall in the squad car; plaintiff agreed to go, but drove his own car. The discussion continued and more verbal invectives were exchanged between Cottrell and the plaintiff. During this discussion, Cottrell gave the plaintiff the alternative of apologizing and paying a fine of $100 or going to jail. Plaintiff began to leave and stated that, if defendant wanted to stop him, he would have to shoot him. Plaintiff stated that, as he was leaving the room, he heard Cottrell tell Darlington to “take” the plaintiff and do whatever had to be done with him. Defendant admittedly said something to this effect, but said he used the language to “do whatever is necessary”.
Officer Darlington took the plaintiff to the office of John Weick, a local justice of the peace. Upon their arrival at that office and learning that he was out, Officer Darlington called and talked to Mr. Weick on the phone and was advised by him to release the plaintiff.
No warrant for plaintiff’s arrest was then or thereafter issued, nor has a criminal complaint been filed by the defendant in this matter. The defendant testified that he believed the matter had been exaggerated out of proportion and that he saw no reason to prosecute.
False imprisonment is sometimes defined as “the unlawful restraint of an individual’s personal liberty or freedom of locomotion”. 12 Michigan Law & Practice, False Imprisonment, § 1, p 292. The essence of a claim of false imprisonment is that the imprisonment is false, i.e., without right or authority to do so. Donovan v. Guy (1956), 347 Mich 457, 464; Barker v. Anderson (1890), 81 Mich 508, 511; Carr v. National Discount Corporation (CA 6, 1949), 172 F2d 899, cert den 338 US 817 (70 S Ct 59, 94 L Ed 495); 12 Michigan Law & Practice, False Imprisonment, § 3, p 299; see Leisure v. Hicks (1953), 336 Mich 148.
The trial court instructed the jury that, if the plaintiff had committed a breach of the peace and, in the ordinary course of procedure for prosecution of a similar complaint, he would have been found guilty, they must find that the period of time the plaintiff was held did not constitute a false imprisonment. Plaintiff objected to this charge, contending that it was error. We agree. The basic issue was whether the plaintiff was lawfully detained; the fact that he may have committed a breach of the peace earlier that day would not justify his arrest (if he were arrested) without a warrant at a later point in time. See MCLA §§ 764.15, 764.16.
Other alleged errors either are not meritorious or are unlikely to occur on retrial of this cause and are, therefore, not discussed here.
Reversed and remanded. Costs to plaintiff.
All concurred.
Defendant’s status in regard to the police department is not made clear by the record :
“Q. Are you a police officer?
“A. No, sir.
“Q. At this time you had been village manager for a short period of time, is that right?
“A. Less than a year.
“Q. If I recall the other testimony here, the ehief of police just recently resigned; is that correct?
“A. Yes.
“Q. In your position of village administrator, what are your functions?
“A. I’m over the police department.” | [
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J. H. Gillis, P. J.
This is an appeal from a decision of the Genesee county circuit court, where it was held that a back-to-work payment under § 27 (c)(2) of the Michigan Employment Security Act, MOLA § 421.27(c)(2) (Stat Ann 1968 Rev § 17.529 [c] [2]), is due a claimant whose termination from employment resulted from “unsatisfactory job performance.”
Briefly, the undisputed facts are that, after two years of employment with Chevrolet Division of General Motors Corporation, Richard W. Foster’s employment was terminated for “unsatisfactory job performance” on February 29, 1968. He filed for, and received, unemployment benefits based on the Michigan Employment Security Commission’s determination that his separation from employment was not a disqualifying one under the terms of the act as it was for reasons other than misconduct connected with his work. On April 1,1968, the claimant obtained employment, whereupon he filed for and received a back-to-work payment from the Michigan Employment Security Commission pursuant to § 27 (c)(2), MCLA § 421.27(c) (2), supra, of the Michigan Employment Security Act. Though the Chevrolet Division of the General Motors Corporation never opposed payment of weekly unemployment benefits, the company timely protested the claimant’s receipt of the back-to-work payment under § 27(c)(2).
Section 27(c)(2) of the Michigan Employment Security Act states that:
“When an individual has had a period of unemployment: (i) for which he has been paid benefits for 1 or more weeks or has received credit for a waiting week, (ii) which commenced with a layoff by an employing unit that continued with such employing unit for more than 3 weeks, and (iii) which has been terminated by his accepting and engaging in full-time work with any employing unit within the 13 weeks immediately following his last week of employment with such employing unit, such individual shall be paid, for the most recent week in such period for which benefits are payable or were paid to him or for which he was entitled to credit for a waiting week, an amount equal to his currently applicable weekly benefit rate in addition to any benefits otherwise payable or paid to him for such week. Benefits shall be payable under this paragraph only for 1 week in an individual’s benefit year and only to the extent that the individual is otherwise entitled to benefits under subsection (d) of this section. An individual shall be deemed to be engaged in full-time work for an employing unit if he has earned with such employing unit within any period of 7 consecutive days commencing within such 13 week period an amount equal to his currently applicable weekly benefit rate. To be eligible for benefits under this subsection, an individual shall file therefor within 13 calendar weeks after the end of the week for which benefits are payable in accordance with this subsection.”
Thus, the narrow issue before us requires an application and interpretation of undisputed facts in determining what is meant by a “layoff” as that word is used in the above-quoted section. That both the circuit court and this Court have jurisdic tion over this issue is evident in § 38 of the Act, MCLA § 421.38 (Stat Ann 1968 Rev § 17.540). Interpretation of legislative intent in enacting a statute is a judicial function; it is the decision of the appeal board which must be analyzed to determine if it had a reasonable basis in fact and law. NLRB v. Hearst Publications, Inc. (1944), 322 US 111, 131 (64 S Ct 851, 861, 88 L Ed 1170, 1185).
Words are to be interpreted according to their ordinary usage and in the sense in which they are understood when employed in common language. See Reetz v. Schemansky (1937), 278 Mich 626; American Telephone & Telegraph Company v. Employment Security Commission (1965), 376 Mich 271; Ford Motor Co. v. Unemployment Compensation Commission (1947), 316 Mich 468. It should not be necessary to restate here that, “We eschew the insertion of words in statutes unless necessary to give intelligible meaning or to prevent absurdity, without regard to our own estimate of the wisdom of the legislation” Great Lakes Steel Corporation v. Employment Security Commission (1967), 6 Mich App 656, 661, 662, affirmed 381 Mich 249. Since the Michigan Supreme Court has ruled that when the Legislature uses a certain phrase or word in a statute, the Court must “presume it was used in its normally accepted meaning * * # ”, American Telephone & Telegraph Company, supra, p 279, we look to the ordinary meaning of the word “layoff”.
In this regard, we begin by saying that a “layoff” is not; it is not a dismissal, a discharge, a permanent termination or, necessarily, a final release from employment. The United States Bureau of Labor Statistics, Handbook of Labor Statistics, 1936, pp 803, 804, states that:
“A ‘layoff’ is a termination of employment at the will of the employer, without prejudice to the worker. Layoffs may he due to lack of orders, technical changes, or the failure of flow of parts or materials to the job, as needed.”
The United States Supreme Court touched upon this issue in the case of Fishgold v. Sullivan Drydock & Repair Corporation (1945), 328 US 275, 286, 287 (66 S Ct 1105, 1112, 90 L Ed 1230, 1241), and stated:
“Discharge normally means termination of the employment relationship or loss of a position. In common parlance and in industrial parlance a person who has been laid off by operation of a seniority system and put on a waiting list for reassignment would hardly be considered as having been ‘discharged’. * * * A furlough is not considered a discharge. It is a form of lay-off. So is a leave of absence. And whether either results from unilateral action by the employer or otherwise, consequences are quite different from termination of the employment relationship.”
The Missouri Supreme Court in the case of Irwin v. Globe-Democrat Publishing Company (1963), 368 SW2d 452, 455, stated that the term “layoff” is to be specifically defined:
“A ‘layoff’, as distinguished from a discharge, contemplates a period during which a working man is temporarily dismissed, Fishgold v. Sullivan Drydock & Repair Corp., 2 Cir., 154 F2d 785, 788, and it also refers to that suspension of work or employment during a part or season of the year when business activity is partly or completely suspended [citing cases]. An employee ‘laid off’ does not have his employment status completely and finally terminated. He ordinarily is entitled to re-employment when the temporary situation calling for the layoff has been corrected or eliminated.”
Therefore, we conclude, that the definition of the word “layoff” does not encompass a discharge for “unsatisfactory job performance.” Our analysis of this matter convinces us that there was a “basis in law” for the Michigan Employment Security Commission Appeal Board to hold:
“The entitlement to a back-to-work payment under sub-section 27(c)(2) requires that a claimant be laid off for lack of work and is not applicable in circumstances wherein a claimant is discharged even if his discharge is found to be under nondisqualifying circumstances.”
The decision of the Genesee County Circuit Court is, therefore, reversed; the decision of the Appeal Board of the Michigan Employment Security Commission is reinstated.
R. B. Burns, J., concurred.
On June 25, 1968 the Michigan Employment Security Commission reaffirmed its original determination that the claimant was eligible to receive a back-to-work payment; thereafter, on August 1, 1968 the referee of the commission affirmed the decision of the commission. The appeal board, however, on December 16, 1968, reversed the decision of the referee and held claimant not to be entitled to a back-to-work payment. The commission then appealed the appeal board’s decision under the provisions of § 38 of the act. The circuit court, on March 20, 1970, rendered its decision reversing the opinion of the appeal board and adopting that of the commission and referee.
Section 38 of the Michigan Employment Security Act states: “the circuit court of the county in which the claimant resides, or, if no claimant is a party to the case, the circuit court of the county in which the employer’s principal place of business in Michigan is located, or in any ease the circuit court for the county of Ingham, shall have power to review questions of fact and law on the record made before the referee and the appeal board involved in any such final order or decision of said appeal board, and to make such further orders in respect thereto as justice may require, but said court may reverse such order or decision only if it finds that such order or decision is contrary to law or is not supported by competent, material and substantial evidence on the whole record. Application for such review must be made within 15 days after mailing of a copy of the order or decision by any method permissible under the rules and practices of the circuit courts of this state. The commission shall be deemed to be a party to any judicial action involving any order or decision of the appeal board. An appeal may be had from the decision of said circuit court in the same manner as provided by the laws of this state with respect to appeals from circuit courts.” MOLA § 421.38 (Stat Ann 1968 Rev § 17.540).
Paye v. City of Grosse Pointe (1937), 279 Mich 254; Bolles v. Employment Security Commission (1960), 361 Mich 378; McAnallen v. Employment Security Commission (1970), 26 Mich App 621.
Peaden v. Employment Security Commission (1959), 355 Mich 613; Bedwell v. Employment Security Commission (1962), 367 Mich 415.
Random House Dictionary of English Language (1966); Webster’s Third New International Dictionary (1966); Oxford English Dictionary (Supp); Eunk and Wagnales New Standard Dictionary (1945).
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Per Curiam.
The plaintiff, The Eoostertail, Inc., commenced this action seeking a declaratory judgment that it is not hound by the results of arbitration proceedings instituted by defendants Patti Page and Pattack, Inc. The trial judge entered a summary judgment dismissing Eoostertail’s complaint on the ground that it had not exhausted its arbitration remedies. We reverse and remand for trial because there are factual questions that must be resolved before the legal issues can be decided.
Patti Page is a nationally-known entertainer; Pattack is a corporation which contracts for the delivery of her services. Eoostertail is a Detroit night club and restaurant.
Page and Pattack agreed with Eoostertail under a contract dated July 30, 1968, that Page would appear at the Eoostertail during the period October 17-26, 1968, for the sum of $17,500. The dispute arises out of Page’s and Pattack’s claim that the Eoostertail prevented Page from performing during that period.
Page and Pattack filed a claim against Eoostertail on October 23, 1968, with the Detroit branch of the American Guild of Variety Artists (AGVA).
The July 30, 1968 contract between Eoostertail, Page, and Pattack provided that all the provisions of any agreement then existing between Eoostertail and AGVA were incorporated by reference and would govern the engagement covered by the contract. Eoostertail and AGVA had previously entered into a contract called the minimum basic agreement. This agreement, dated November 14, 1961, provided for arbitration of disputes between operators and artists:
“7. AEBITEATION: The employer agrees that any and all controversies and disputes arising out of or relating to this agreement or out of the em ployment of Artists hereunder shall be settled and determined by AGVA.”
The minimum basic agreement further provided that the operator agreed that the employment of artists was subject to all AGVA rules and regulations; and that “this agreement shall be construed in accordance with the laws of the State of New York”.
A hearing was scheduled on December 5, 1968, on the Page and Pattack claim. The parties appeared on that date before the Detroit branch executive committee of AGVA. No transcript of the proceedings was made. Boostertail alleges that:
(a) there was no contractual basis for the jurisdiction of the arbitrators;
(b) Boostertail had no say in the selection of the arbitrators;
(c) a request for the names of the arbitrators prior to the hearing was denied;
(d) the arbitrators could not be impartial because of their membership in AGVA;
(e) one of the arbitrators could not be considered impartial because of his involvement in a separate dispute between the Boostertail and a third party;
(f) no copy of the complaint was given before the hearing although one was requested;
(g) Page did not appear at the hearing;
(h) one of the arbitrators objected to the presence of Boostertail’s attorney;
(i) the arbitrators did not take an oath or otherwise follow the procedure required by New York law;
(j) the rules of evidence were not followed;
(k) the conduct of the arbitrators showed evident partiality; and
(l) “the nature of the proceedings, including the question of the binding effect was never clarified and the arbitrators themselves had varying opinions with respect thereto.”
Roostertail claims that it requested that Page, Pattack, and AGVA stipulate that its objections would not be waived if it proceeded at the hearing on the merits. When the stipulation Avas refused, Roostertail’s representatives left the hearing.
After they had left, the branch executive committee proceeded to hear the evidence submitted in behalf of Page and Pattack. On December 18, 1968, Roostertail received notice of the “recommendation” of the branch executive committee that Roostertail be required to pay Page and Pattack $17,500. This notice included a copy of the rules for appealing the recommendation to the National Appeals Board of AGVA. The time given for taking this appeal ended on December 28, 1968; Roostertail did not appeal. On December 31,1968, Roostertail commenced this action for a declaratory judgment and other relief.
Roostertail says that it did not prosecute an appeal to AGVA’s National Appeal Board because it feared that if it did that would constitute a waiver of its objections and because it could not hope for a favorable decision because there had been no hearing on the merits and “it is doubtful that the monetary restrictions on appeal could have been met”. The monetary restriction referred to is a requirement that the entire amount recommended to be paid ($17,500) be deposited with AGVA.
Roostertail claims that the arbitrability of the dispute is governed by New York laAv and that the alleged agreement to arbitrate was not “clear and direct” as required by New York law.
Our review of the contract documents convinces us that the obligation to arbitrate is neither hidden nor ambiguous and we, therefore, conclude that the parties manifested their agreement to arbitrate disputes with sufficient clarity and directness.
Roostertail alternatively argues that the procedures followed by AGrVA do not conform to New York law because under the law of that state a party cannot he an arbitrator in its own dispute.*
Members of AGVA’s local branch executive committee composed the hearing panel. It appears, however, that the branch executive committee only-makes a recommendation, and that, at least where the appeal remedy is pursued, the award ik made by the National Appeal Board. The appeal to that board is on the record, but either party may submit additional affidavits and “any other pertinent matter pertaining to the appeal for consideration by the National Appeal Board”. Without knowing more than we do about the composition of the appeal board, the nature of the appeal, the powers of the appeal board, and the actual procedures followed in AGVA arbitrations, we are unable to decide whether the AGVA method of arbitration complies with New York law.
And whether the AGVA procedures do or do not comply with New York law, the law of that state does not necessarily govern.* * Under Federal labor law, which Page, Pattack, and AGVA claim preempts New York law, “final adjustment by a method agreed upon by the parties” is authorized. In Haynes v. United States Pipe & Foundry Company (CA 5, 1966), 362 F2d 414, 417, the contract allowed the manager of the plant to make the final determination of a dispute, subject only to the union’s right to strike. In upholding this method of “final adjustment” against the claim of an employee who contended that he had been wrongfully discharged, the United States Court of Appeals for the Fifth Circuit observed:
“The statutory policy statement, § 203(d), supra [Taft-Hartley Act, 29 USCA § 173(d)], makes no mention of arbitration. As previously noted, the Supreme Court has said that the policy of § 203 (d) ‘ * * * can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play.’ United Steel Workers of America v. American Manufacturing Co. (1960), 363 US 564 (80 S Ct 1343, 4 L Ed 2d 1403). The policy contemplates whatever means the union and the employer may have chosen to settle grievances.”
The United States Supreme Court has held* * 7that the Labor Management Relations Act (LMRA) is the source of a new Federal labor law, to be fashioned by the courts, concerning “suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce”. 29 USCA § 185 (a) (LMRA 1947, §301 [a]).
But it is not clear that Roostertail is an “employer”, or that Patti Page is an “employee” and not an independent contractor.* Although the master basic agreement provides that, at least for certain purposes, “all Artists shall be considered as employees and not independent contractors”, the parties cannot foreclose inquiry as to whether Federal law governs. The actual relationship of the parties, not merely their characterization of that relationship, is relevant. The distinction between an independent contractor and an employee must be determined from the total relationship of the parties, including, but not limited to, the terms of their contract. The true nature of the relationship cannot be determined from the record before us.
If Federal law governs, this would not preclude the application of so much of New York law as is deemed hot inconsistent with the policy of Federal labor law. The New York law might become applicable either as part of the “final adjustment method” agreed upon by the parties or as a source of the still developing Federal law.
Nor are we in a position to express an opinion regarding the possible application of the doctrine of exhaustion of remedies. We have been told little about the scope of the remedies or inquiry before the National Appeal Board of AGVA. We are inclined to the view, but need not definitively decide, that questions that could not be raised before that tribunal can be raised in a court of law.
Since the trial judge did not refuse to declare the rights of the parties in the exercise of discretion, we need not consider the extent of his discretion or whether it was abused in this case.
The intricate legal issues presented may well dissolve when the facts are more fully developed. Summary judgment should not have been granted.
Beversed and remanded for further proceedings consistent with this opinion. Costs to abide the event.
In Riverdale Fabrics Corp. v. Tillinghast-Stiles Company (1954), 306 NY 288 (118 NE2d 104, 106), the New York Court of Appeals refused to find an agreement to arbitrate from a provision which said the contract was subject to trade association rules, which rules contained an arbitration provision. This case is distinguishable because the contract there, in contrast with the contract here, contained no language incorporating the rules by reference (a distinction stressed by the New York Court in distinguishing an earlier case) and because the minimum basic agreement, which contains the arbitration clause, was signed by the Roostertail itself. It could not properly be said here that the parties have been “led into arbitration unwittingly through subtlety.”
In Matter of Cross 4" Brown Company (1957), 4 App Div 2d 501 (167 NYS2d 573, 576), the appellate division for the First Department, New York Supreme Court, ruled that a provision in an employment contract naming the board of directors of the employer company as arbitrators for any dispute arising out of the contract was “not a contract to arbitrate, but an engagement to capitulate”. Although a person with a known interest in the matter or relationship to a party can be named an arbitrator, “no party to a contract, or someone so identified with the party as to be in fact, even though not in name, the party, can be designated as an arbitrator to decide disputes under it”. The agreement was held to be void despite an offer by the company to appoint neutral arbitrators. Cf. Commonwealth Coatings Corp. v. Continental Casualty Co. (1968), 393 US 145 (89 S Ct 337, 21 L Ed 2d 301), reh. den. 393 US 1112 (89 S Ct 848, 21 L Ed 2d 812).
Astoria Medical Group v. Health Insurance Flan of Greater New Torio (1962), 11 NY2d 128 (182 NE2d 85), relied on by the defendants, is not in point. There the contract provided for two “partisan” arbitrators, one selected by each side, who would choose a third “neutral” arbitrator. It was held that the selection of partisan arbitrators was not inconsistent with arbitration but this was said in the context of a tribunal where the deciding vote would, presumably, be cast by a neutral arbitrator.
In recent years courts and legislatures have come to look with great favor on agreements to submit disputes to arbitration. The original reluctance to allow arbitrators to come between an aggrieved party and the courts was in part attributable to an unwillingness to believe that a party would give up juridical safeguards. Not surprisingly, when the courts became persuaded of the benefits of arbitration, they began to scrutinize the arbitration process.
“The price of judicial support for arbitration is a measure of judicial intervention”. Cox, Reflections upon Labor Arbitration, 72 Harv L Rev 1482, 1488 (1959).
However, objections to arbitration may be raised in the courts only at certain times and by certain procedures. Recognizing that judicially imposed safeguards to some extent undercut arbitration, the courts have subjected arbitration to only very limited restrictions.
Labor arbitration, it has been said, is both a judicial process and an extension of collective bargaining; if it is to continue as the chosen method of the parties it must balance the merits of the dispute against the result which the relative economic power of the parties would produce. 3 Werne, Administration of the Labor Contract, § 56.01, p 232. This dual nature of arbitration is to be observed in the commercial field as well.
A contract provision may, however, cease to be a contract for arbitration at all and may constitute a mere expression of the adhesive power one party holds over another. The use of the word “arbitration” does not necessarily entitle a contract provision for arbitration to the respect accorded true arbitration by the courts.
Neither party contends that Michigan law applies. Nor has it been contended that the National Labor Relations Act bears on the issues presented.
“Pinal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” 29 USCA § 173(d) (LMRA 1947, § 203[d]).
Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Company (1962), 369 US 95 (82 S Ct 571, 7 L Ed 2d 593); Textile Workers Union of America v. Lincoln Mills of Alabama (1956), 353 US 448 (77 S Ct 912, 1 L Ed 2d 972).
Cf. American Guild of Musical Artists, AFL-CIO (National Symphony Orchestra Association) (1966), 157 NLRB 735.
Cf. United States v. United Scenic Artists Local 829 of the Brotherhood of Painters, Decorators and Paperhangers of America (SD NY, 1961), 27 FRD 499.
Cf. Long v. City of Highland Park (1950), 329 Mich 146, 149.
Strager v. Wayne County Prosecuting Attorney (1968), 10 Mich App 166, 173; cf. Devenco, Incorporated, v. Emerson Radio & Phonograph Corporation (1958), 12 Misc 2d 949 (174 NYS2d 132, 136). | [
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Per Curiam.
Defendant was convicted by a jury of robbery armed contrary to MCLA § 750.529 (Stat Aun 1971 Cum Supp § 28.797), and sentenced to serve 3 to 15 years in prison.
On appeal defendant alleges that his conviction was the result of tainted identification testimony admitted over his objection. It is complained that the use of “mug shots” by the police in order to discover the defendant’s identity and the conducting of an informal lineup without providing the defendant with counsel rendered the in-court identification by the robbery victims inadmissible. The people in their brief candidly admit that the conduct of the lineup in the absence of an attorney was a violation of defendant’s constitutional rights, but maintain that the error was harmless.
Once a claim of illegal identification is raised the court must hold an evidentiary hearing outside the presence of the jury to determine the merits of the claim. People v. Hutton (1970), 21 Mich App 312; People v. Childers (1969), 20 Mich App 639. In the present case the trial court held an extensive hearing covering five days and filling 600 pages in the record. At the end of the hearing, the court concluded that the photographic identification procedure was proper, since it was not so suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 US 377 (88 S Ct 967, 19 L Ed 2d 1247). The court further found that failure to provide defendant with an attorney at the lineup was a violation of his right to counsel, Wade v. United States (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149), hut that the people had shown by clear and convincing evidence that the in-court identification had an independent origin. We fully concur with the court’s determination.
Both witnesses were eyewitnesses to the robbery. They had an excellent, unobstructed view of the defendant over a period of several minutes. Their identification of the defendant was positive and unwavering. Under these circumstances, we feel that the in-court identification was purged of any taint. See Wong Sun v. United States (1963), 371 US 471 (83 S Ct 407, 9 L Ed 2d 441).
Finally, the procedure used by the police with regard to the photographic identification was essentially identical to that approved by this court in People v. Piscunere (1970), 26 Mich App 52.
For the foregoing reasons, the judgment of conviction is affirmed.
Affirmed. | [
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] |
Per Curiam.
Defendant, Johnnie Woods, was convicted by a jury of breaking and entering with intent to commit larceny. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). He appeals as of right.
Defendant appeared in court wearing a prison uniform and a blue windbreaker jacket. Following voir dire and impaneling of the jury, defense counsel moved for a mistrial on the ground that defendant’s presumption of innocence was infringed by his appearing in that manner. The trial judge ordered a recess to allow defendant to change clothes, but denied the motion for mistrial ruling that it was not timely made and that no prejudice resulted since the combination of the windbreaker jacket and green prison trousers gave the appearance of ordinary work clothes and that no prison insignia was visible.
Defendant claims on appeal that denial of his motion for mistrial was reversible error. We disagree. In People v. Shaw (1969), 381 Mich 467, the Supreme Court ruled that although appearance before a jury in prison clothes may constitute prejudicial error, failure to make objection until after the jury is impaneled waives the defect. Because of the trial court’s finding, in the instant case, that defendant’s attire resembled work clothes instead of a prison uniform and in light of defendant’s failure to make timely objection, we find no error.
Defendant also argues he was denied effective assistance of counsel as an alternative to his claim of prejudice. His contention is that if his lawyer waived the claim of improper attire, then his counsel was necessarily ineffective.
Competence or effectiveness of counsel cannot be measured by the number of witnesses cross-examined and the number of objections made. People v. Lundberg (1961), 364 Mich 596. Nevertheless, the record reveals defense counsel thoroughly cross-examined witnesses and strenuously argued his case to the jury. The trial court’s ruling that defendant’s attire could not have prejudiced the jury vitiates defendant’s claim of ineffective counsel for failure to object on that ground. Defendant was not denied effective counsel within the meaning of People v. Degraffenreid (1969), 19 Mich App 702. See People v. O’Guin (1970), 26 Mich App 305.
The remaining assignment of error does not merit discussion.
Affirmed. | [
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] |
Per Curiam.
Plaintiff Orla C. Smithson was engaged in the distribution of petroleum products in Genesee County for many years. Among the products distributed were those of the defendant Leonard Refineries, Inc. Prior to the transaction in this action, plaintiff had turned the operation of his business over to his son, while retaining the title to the real estate upon which the business was located.
Plaintiff’s son encountered difficulties and became indebted to defendant Leonard Refineries and others. After a series of meetings a plan was devised to aid the son so that he could continue in business and reestablish his lost credit. As a part of that plan, and that which is pertinent to the instant proceeding, plaintiffs agreed to mortgage the business premises and execute a long-term lease of the premises to Leonard Refineries. Plaintiffs also assigned the mortgage proceeds to Leonard, to be disbursed by them according to a prearranged schedule.
The entire transaction was consummated in February of 1961. In February of 1967 this action was filed, claiming fraud on the part of both defendants and asking that the mortgage be set aside or the mortgage proceeds be delivered to plaintiffs. At the close of plaintiffs’ proofs defendants moved for judgment on the merits pursuant to GCR 1963, 504.2. The court entered a judgment of no cause of action and rendered its written findings of fact and law pursuant to GCR 1963, 517. From that adverse determination plaintiffs have taken this appeal.
The elements of actionable fraud are well established under Michigan law. The burden is placed on the plaintiff to show that a material representation was made by the defendant that was false and that the defendant either knew it was false or made such representation recklessly as a positive assertion without any knowledge of its truth, that the representation was made with the intention that it should be acted upon by the plaintiff, and that the plaintiff did act upon it and thereby suffered damage. Candler v. Heigho (1919), 208 Mich 115, 121; Columbus Pipe & Equipment Company v. Sefansky (1958), 352 Mich 539, 544; Reinink v. VanLoozenoord (1963), 370 Mich 121.
In an action of fraud tried before a court sitting without a jury, the appellate courts must sustain that court’s conclusions where they cannot be said to be against the clear preponderance of the evidence. Kraus v. Arthur Murray Studios (1965), 2 Mich App 130; GCR 1963, 517.1. On the record presented we cannot say that the trial court’s finding was against the clear preponderance of the evidence. The failure of the plaintiffs to carry the requisite burden is apparent from the testimony taken; the trial court’s findings thus cannot be disturbed on appeal.
Affirmed. Costs to defendants.
Under this court rule the defendant may “move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief”.
This Court also accepts the trial court’s findings of fact as they are not “clearly erroneous”. See GCR 1963, 517.1; Tann v. Allied Van Lines, Inc., (1966), 5 Mich App 309. | [
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McGregor, P. J.
The litigation precipitating this appeal has been long and acrimonious. Aschliman was originally a defendant in a suit in tort for damage claimed to have resulted from an illegal conspiracy between Miller Brothers Creamery, a corporation, and three individual defendants, who had been milk-route drivers handling the products supplied by this plaintiff. On trial, before a jury in circuit court, a verdict of $40,000 was given in favor of the plaintiff and against all the defendants. The facts of that case and the basis for this appeal are fully set out in Bahr v. Miller Brothers Creamery (1961), 365 Mich 415. The judge granted defendant’s motion for judgment notwithstanding the verdict. Plaintiff’s appeal brought a reversal as to the individual defendants and an affirmance as to the corporate defendant. A new trial was ordered for the reason that the damages were deemed excessive.
At the close of the new trial against the individual defendants, based upon conspiracy to breach their contracts, as well as breach of contract, the jury returned a verdict of $12,600 against the defendants. Subsequent to this judgment, defendant Aschilman was adjudicated a bankrupt. Plaintiff, having discovered that no stay of proceedings had been filed, sought a writ of garnishment and duly executed it. Defendant petitioned for an injunction in the instant proceedings and requested a discharge of this debt, pursuant to MCLA § 600.2914 (Stat Ann 1962 Bev § 27A.2914). In opposition, the plaintiff maintained that his judgment was excepted and nondischargeable under the Federal Bankruptcy Act. On April 21,1970, the trial court permanently enjoined plaintiff from attempting any means of collection of his judgment against this defendant.
Plaintiff alleges that the conspiracy to breach the contract did constitute wilful and malicious injury to his property, coming within the exception to 11 USC § 35(a):
“A discharge in bankruptcy shall release a bankrupt from all his provable debts, whether allowable in full or in part, except such as # * # (2) are liabilities for obtaining money or property by false pretenses or false representations, * * * or for wilful and malicious injuries to the person or property of another * * * ’’,
The United States Supreme Court has addressed itself to the meaning of wilful and malicious injuries:
“In order to come within that meaning as a judgment for wilful and malicious injury to person or property, it is not necessary that the cause of action be based upon special malice, so that without it the action could not be maintained. * * #
“It is urged that the malice referred to in the exception is malice towards the individual personally, such as is meant, for instance, in a statute for maliciously injuring or destroying property, or for malicious mischief, where mere intentional injury without special malice towards the individual has been held by some courts not to be sufficient. Commonwealth v. Williams, 110 Mass 401.
“We are not inclined to place such a narrow construction upon the language of the exception. We do not think the language used was intended to limit the exception in any such way. It was an honest debtor and not a malicious wrongdoer, that was to be discharged.” Tinker v. Colwell (1904), 193 US 473, 485, 487, 488 (24 S Ct 505, 508, 509, 48 L Ed 754, 759, 760). See also McIntyre v. Kavanaugh (1916), 242 US 138 (37 S Ct 38, 61 L Ed 205); Davis v. Aetna Acceptance Corporation (1934), 293 US 328 (55 S Ct 151, 79 L Ed 393).
This exception has been recognized and interpreted by the Michigan Supreme Court in the context of malicious destruction of property and tortious, con version. Probst v. Jones (1933), 262 Mich 678; Tudryck v. Mutch (1948), 320 Mich 86.
In re Minsky (SD NY, 1942), 46 F Supp 104, indicates that the wilful inducing of another to breach his contract with a third party constitutes a wilful and malicious injury, coming within the second exception to § 35 of the Bankruptcy Act. It is the single case upon which the plaintiff relies in asserting error.
In the instant case, after remand by the Michigan Supreme Court, the plaintiff maintained this cause against the defendants on the theories of breach of contract and conspiracy to breach their contracts. In order to resolve the parties’ contentions, this Court must view the original record and attempt to characterize the liability sought to be imposed:
“The fact that the language of the original judgment indicates that it was based upon ‘fraud and deceit,’ is not controlling as to either party, but the record must be examined to determine the true nature of the acts upon which the judgment was based.” Tudryck, supra, 93. See also Citizens Mutual Automobile Insurance Company v. Gardner (1946), 315 Mich 689, 694.
Assuming without deciding that all this action for conspiracy would he an excepted debt under the Bankruptcy Act, a review of the record reveals the impossibility of concluding upon which verdict the jury based its award.
Plaintiff would have this Court infer that the damage award is allocable fully to the conspiracy verdict from the fact that the jury made defendants jointly and severally liable for the award. While this would be an easy solution to the problem, it is difficult to read anything into the decision of the jury other than that the defendants breached their contracts and that they conspired to breach their contracts. The burden of proof was upon the plaintiff as the one seeking to avoid the discharge in bankruptcy. Money Corporation v. Draggoo (1936), 274 Mich 527; McClure v. Steele (1949), 326 Mich 286.
An additional factor supporting the judgment of the circuit court is that the judge who granted the injunction was the same judge who presided over the trial of plaintiff’s dual causes of action. The same arguments presented by plaintiff to this Court were formulated in plaintiff’s brief submitted to the trial judge; yet, the trial judge characterized plaintiff’s judgment as one discharged in bankruptcy. Unable to perceive the underlying theory of liability relied upon by the jury, this Court should accept the determination of the trial judge. Since his finding cannot be construed as clearly erroneous, it is upheld. CCB 1963, 517.1.
Trial court is affirmed. Costs to appellee.
All concurred.
See the amendment to this section, Pub L 91-467, wherein the words “malicious conversion of the property of another” are substituted for “malicious injuries to the person or property of another”; also see this amendment for other changes. | [
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Bronson, J.
This appeal arises out of an accident which occurred on April 29, 1967. Plaintiff had hired defendant, an excavating contractor, to do certain grading and excavating on the plaintiff’s property. Defendant’s employee, Donald E. Bergman, was operating a bulldozer for the purpose of removing trees from the plaintiff’s property. While the bulldozer operator was pushing on the bottom end of one of the fallen trees, the top end pivoted in the opposite direction and struck plaintiff, breaking one of plaintiff’s legs.
The issues raised at trial related to the alleged negligence of defendant’s employee as well as to the alleged contributory negligence of the plaintiff. At the close of the parties’ proofs, defendant moved for a directed verdict, alleging plaintiff’s contributory negligence as a matter of law. The trial judge reserved decision on defendant’s motion and submitted the case to the jury. The jury returned a verdict of no cause for action. Plaintiff appeals as of right from the trial court’s denial of plaintiff’s motion for new trial.
On appeal plaintiff alleges that the trial judge committed numerous errors in his charge to the jury. Only one alleged instructional error need be considered. The record discloses that the trial court failed to instruct the jury that defendant has the burden of proof in attempting to establish plaintiff’s contributory negligence. A review of the trial court’s instructions leaves the inference that the plaintiff must establish that he was free from contributory negligence.
Although plaintiff’s failure to request the instruction on burden of proof and failure to properly object as required by GrCR 1963, 516 would usually preclude consideration on appeal, we shall, under these circumstances, consider the issue to prevent a manifest injustice. As the Michigan Supreme Court stated in Hunt v. Deming (1965), 375 Mich 581, 585:
“This is not to say that this Court may not, in unusual circumstances, and to prevent manifest injustice, take note of instructions which err with respect to basic and controlling issues in a case even though objection thereto was not made before the jury retired. * * * It is to say, however, that the Court will exercise its discretion in this fashion but sparingly.”
In the instant case, one of the controlling issues related to the allegation of plaintiff’s contributory negligence. Under Michigan law, the defendant has the burden of proving the plaintiff’s contributory negligence. We hold that, in view of the evidence presented, the trial judge had the duty, even absent request, to so instruct the jury.
Reversed and remanded. Costs to plaintiff.
All concurred. | [
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] |
Peterson, J.
Plaintiff is defendant’s motor vehicle insurer. In addition to the usual casualty and liability coverage, the policy purchased by defendant included uninsured motorist coverage by which plaintiff agreed to pay its insured all damages sustained by the insured in an accident “arising out of the ownership, maintenance or use of (an) uninsured automobile”, which the insured would “be legally entitled to recover from the owner or operator of [such] uninsured automobile”. The policy further provides that the right to such damages and the amount thereof shall be determined by arbitration, absent agreement thereon:
“provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.”
And:
“If any person making claim hereunder and the company do ndt agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such persons and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this part.” (Emphasis added.)
One of the policy definitions of an uninsured automobile, is “a hit-and-run automobile”, which in turn is defined as follows:
“ ‘hit-and-run automobile’ means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the ^insured or with an automobile which the insured" is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such ‘hit-and-run automobile’; (b) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (c) at the company’s request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.”
Defendant insured alleges that on February 13, 1968, on highway 1-94 an unidentified automobile cut in front of Ms car, striking it, and driving it off the expressway, with resulting injuries to defendant and his passenger. Claiming to come witMn the “hit-and-run” definition above, defendant instituted a claim with the American Arbitration Association.
Plaintiff insurer, however, asserts that there can be no arbitration, denying that there was any physical contact between defendant’s automobile and an alleged “hit-and-run” vehicle. It contends that while the insurance contract precludes judicial determination of the cause of action of the insured vis-a-vis the uninsured motorist, if any, that being determined solely by arbitration, whether there is a question for arbitration is a separate question which is not arbitrable and which can be settled solely by judicial proceedings. In this view of the contract, one of the parties in a case such as this must seek declaratory relief. 3**Assuming a determination favorable to the insured on the question of whether there was a “hit-and-run” accident, or whatever other factual question might be posed as a prerequisite to arbitration, the dispute would then be commenced anew in arbitration. In such cases, the result is to duplicate in two different forums the trial of what is essentially the same factual question arising out of a single event.
Plaintiff accordingly brought its action seeking a declaratory judgment as to whether its insured had been in an accident with an uninsured motorist as defined in the contract so as to be entitled to go to arbitration about that accident. The trial judge took a more frugal view of the procedure. He concluded that it was wasteful of the time and effort of the parties, productive of unnecessary litigation, and inconsistent with the ends which arbitration is designed to meet. He granted the insured’s motion for summary judgment and entered an order requiring the arbitrator to determine whether there was physical contact between the insured vehicle and the alleged “hit-and-run” vehicle. Plaintiff appeals.
This question was before the Court in Western Casualty & Surety Company v. Strange (1966), 3 Mich App 733, 736. In that case, we said:
“Since the only arbitrable matters are those specified in the insurance contract (Carr v. Kalamazoo Vegetable Parchment Co. [1958], 354 Mich 327), we must look to the language of the. policy for decision. As we read it, 3 things must be determined before plaintiff is liable to defendant,-namely: (1) that someone other than defendant was the proximate cause of the accident; (2) that such person was operating an uninsured vehicle or was a hit- and-run motorist so determination of insurance coverage is not possible; (3) the amount of defendant’s recovery.
“Interpretation of this, or similar, language has not been presented to the Michigan Supreme Court. Under a similar arbitration provision, the court of appeals of New York held in Rosenbaum v. American Surety Company of New York (1962), 11 NY2d 310 (229 NYS2d 375, 183 NE2d 667), that items (1) and (3) above were arbitrable but that item (2) was for court determination. This interpretation was adopted by the superior court of Connecticut in Hartford Accident & Indemnity Co. v. Travelers Insurance Co. (1964), 25 Conn Sup 414 (206 A2d 847). It appears to us as reasonable and proper, and we adopt it as controlling in the case before us.”
We think Western Casualty errs in assuming as a basic premise that Carr says that the only piatters arbitrable under an insurance contract are those specified in the contract. Carr and Acme Cut Stone Co. v. New Center Development Corp. (1937), 281 Mich 32, upon which Carr relies, merely state the general proposition that arbiters derive their powers from the arbitration submission agreement. Neither Carr nor Acme involved insurance contracts. Neither dealt with attempts to segregate disputed issues into arbitrable sheep and judiciallytriable goats (or vice versa). And neither concerned situations where it might be recognized that public policy, legislatively or judicially expressed, might be relevant in construing the agreement of the parties.
Western Casualty did not note some such public policy requirements. Section 2254 of the Insurance Code of 1956 (PA 1956, No 218; MCLA § 500.2254 [Stat Ann 1957 Eev § 24.12254]) re-enacted a venerable provision of Michigan insurance legislation:
“No article, bylaw, resolution or policy provision adopted by any life, disability, surety, or casualty insurance company doing business in this state prohibiting a member or beneficiary from commencing and maintaining suits at law or in equity against such company shall be valid and no such article, bylaw, provision or resolution shall hereafter be a bar to any suit in any court in this state: Provided, however, That any reasonable remedy for adjudicating claims established by such company or companies shall first be exhausted by the claimant before commencing suit.”
Under Act 218, and its identical predecessors, arbitration agreements in insurance contracts have frequently been upheld as “reasonable” remedies for adjudicating claims. That is not to say that all arbitration agreements are reasonable under the statute, but only that arbitration agreements must meet the statutory requirement of reasonableness to be upheld. What is reasonable in a particular case is for the courts to say. In Shapiro v. Patrons’ Mutual Fire Insurance Co. of Michigan (1922), 219 Mich 581, 586, the Court said:
“The main purpose in inserting such stipulations in insurance policies and the chief reason for sustaining their validity, is that they provide a simple and inexpensive method for the prompt adjustment and settlement of claims.”
We think an interpretation of an arbitration agreement which would have the effect of chopping up a dispute between an insured and his insurer and requiring separate determinations of each portion thereof in different forums militates against the very benefits sought by arbitration and which benefits tend to make arbitration a reasonable remedy under the insurance code.
Further, the question cannot be viewed without reference to a positive legislative enactment authorizing contracting parties to agree to arbitration of future disputes under their contract. In such cases MCLA § 600.5001(2) (Stat Ann 1962 Rev § 27A-.5001[2]) provides:
“Such an agreement shall stand as a submission to arbitration of any controversy arising under said contract not expressly exempt from arbitration by the terms of the contract.” (Emphasis added.)
The effect of the act, then, is to distinguish the situation in which parties agree to submission of an existing dispute, where the arbitration is dependent on the issues submitted, and the contract incorporating an agreement to arbitrate future disputes arising thereunder in which the scope of arbitration is not dependent on precisely defining what they have agreed to arbitrate but on what they have expressly withheld from future arbitration.
If there is any doubt whether the agreement of the parties to arbitrate “the matter or matters upon which (the insured) and the company do not agree” specifically includes questions involving the existence of injury from uninsured automobiles, it is clear that such language cannot possibly be construed as expressly exempting such questions from arbitration.
For these reasons we conclude that the parties provided but one means of resolving disputes under this coverage, that of arbitration.
Affirmed.
All concurred.
See Norton v. Allstate Insurance Company (ED Mich, 1964), 226 F Supp 373; Van Horn v. State Farm Mutual Automobile Insurance Company (CA 6, 1968), 391 F2d 910; and Stagray v. Detroit Inter-Insurance Exchange (1965), 1 Mich App 321.
In Lord v. Auto Owners Ins. Co. (1970), 22 Mich App 669, it was the insured. Here, as in Western Casualty Surety Co. v. Strange, infra, it is the insurer.
Many such questions are listed in Widiss, Uninsured Motorist Coverage (W. H. Anderson Co., Cincinnati, 1970), § 6.21. See also the annotation on uninsured claim arbitration in 29 ALR3d 328.
Western Casualty assumed for Carr the precedential qualities of the New York precedents to Rosenbaum v. American Surety Company of New York cited in the excerpt from Western Casualty above. Without elaborating on the differences, suffice it to say that Bosenbaum was a 4-3 decision, with three New York judges concluding that the agreement to arbitrate “the matter or matters upon which the insured and the company do not agree” left no room for a separate determination of the question of injury by an insured motorist as a condition precedent to arbitration. That view has been followed in decisions of two other states; Employers Fire Insurance Company v. Garney (1965), 348 Mass 627 (205 NE2d 8) and National Grange Mutual Insurance Company v. Kuhn (1968), 428 Pa 179 (236 A2d 758).
See fn 1, supra; see also Allen v. Patrons’ Mutual Fire Insurance Company of Michigan, Limited (1911), 165 Mich 18, and cases cited there, pp 22, 23. | [
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] |
O’Hara, J.
Plaintiff began this action in the nature of a suit for a declaratory judgment. She sought an adjudication of her right to proceed against the Secretary of State as custodian of the Motor Vehicle Accident Claims Fund.*
In substance, her complaint asserted that though her notice of intent to claim against the Fund was not formally filed within the six-month period from the date of the accrual of her cause of action, she had substantially complied with the statute within that period, and, additionally, that any failure of strict compliance was caused by the actions of the custodian of the Fund.
On motion of the Attorney General, representing the Secretary of State, the trial judge granted a summary judgment which, in effect, held held her cause of action was lost because of noncompliance with the notice provision.
The case arose from an automobile collision on December 5, 1968, in which a vehicle owned and operated by plaintiff was struck from behind by an automobile owned and driven by Wayne Douglas Russell.
On April 18, 1969, plaintiff, through her attorney, wrote defendant Secretary as follows: “Could you please advise us from your records as to whom the insurance carrier was when Mr. Russell applied for his 1968 license plates.”
An agent of defendant responded to the query by indicating what the records reflected: “Insurance: Allstate Insurance Co., N191044,3-25-69.” (The latter being the expiration date of the insurance policy.)
Once plaintiff had been informed as to the automobile insurance carried by the alleged tortfeasor, her attorney directed his claim to Allstate and awaited its reply. For some inexplicable reason, Allstate delayed about 2-1/2 months before it finally informed plaintiff’s counsel that Russell had never been one of its policyholders.
Given this unhappy circumstance, plaintiff, within about a month of receiving this information from Allstate, notified the Secretary of her intent to claim against the Fund. Acting pursuant to statutory authorization, defendant rejected the claim because of failure to give notice within six months following accrual of the cause of action.
Plaintiff admits that no claim was made against the Fund until about seven months and eight days following the accident.
An examination of the Motor Vehicle Accident Claims Act does not indicate any explicit requirement that the injured party inquire as to whether the tortfeasor carried liability insurance prior to giving notice of intent to claim against the Fund. However, plaintiff’s actions in investigating Russell’s insurance coverage certainly were prudent. The Secretary of State should not be heard to complain about preliminary inquiries as to possible indemnification by a tortfeasor’s insurance company. Time and expense may be saved if an initial determination can be made that the offending vehicle was insured, and that the Fund thus has no liability arising out of the accident. Unless injured parties may inquire as to the existence of insurance and place reasonable reliance upon information furnished by the Secretary, the effect would be to encourage the filing of a claim in every accident, which would add an immeasurable administrative burden.
On oral argument, defendant’s counsel admitted that no prejudice had resulted from failure to receive notification within the prescribed period. Because the official records indicated that Russell carried insurance, defendant presumptively would have done nothing toward making a detailed investigation of the claim before it received the notice of intent to claim. Accordingly, we are unable to perceive any justification for denying an apparently meritorious claim based upon inconsequential delays not attributable to plaintiff.
Statutory provisions requiring that notice of a claim be given to a governmental unit are not necessarily jurisdictional. Their purpose is to insure that the Secretary will have an opportunity to investigate the validity of claims before they become “stale” and to determine possible liability of the Fund. Stacey v. Sankovich (1969), 19 Mich App 688.
Mandatory notice requirements have been liberally construed by the courts of this state to the end that substantial compliance with a statutory directive will suffice. Stacey, supra; Meredith v. City of Melvindale (1969), 381 Mich 572; Jackson v. City of Detroit Board of Education (1969), 18 Mich App 73. “This judicial policy favoring’ a liberal construction is based on the theory that the inexpert layman with a valid claim should not be penalized for some technical defect.” Meredith, supra, p 579.
Although claimant in this case was represented by counsel at the outset and thus was not technically within the “inexpert layman” rule, we are constrained to hold that her counsel acted with diligence and pursued an eminently reasonable course of conduct to protect his client’s rights.
The order of the trial court granting defendant’s motion for a summary judgment is vacated. Plaintiff may proceed against the Fund in the manner provided by statute.
No costs, a public question.
McGregor, J., concurred.
MCLA § 257.1101, et seq. (Stat Ann 1968 Rev § 9.2801, et seq.)
“In all actions in which recovery is sought against the fund, said action must be commenced within 3 years from the time the cause of action accrues. Recovery from the fund shall not be allowed in any event unless notice of intent to claim against the fund is served upon the secretary, on a form prescribed by him, within 6 months of the date that the cause of action shall accrue.” MCLA § 257.1118 (Stat Ann 1970 Cum Supp § 9.2818).
We take this occasion, respectfully to suggest to the Legislature that recurrence of the situation in this case might be remedied easily by amendment to the statute. We note that the dual function of the Secretary of State, as custodian of the Fund and as the agency issuing license plates, could easily provide a more effective method of exchange of information as to the nonexistence of liability insurance coverage. Hopefully, too, the Legislature might wish to address itself to the problem arising from the fact that evidence of insurance coverage need only extend to the date of the issuance of the license plate, rather than being coextensive with the period of validity of the plate. | [
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Per Curiam.
Defendant Caesar Montevecchio, Loren Jolly, and Joseph Giacalone were charged with armed robbery. MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). Because of certain statements made by Loren Jolly to the police, motion for separate trial for the defendant herein and Joseph Giacalone was granted. Defendant and Giacalone were both convicted as charged, and defendant was sentenced to serve not less than 50 years nor more than 70 years in the state prison.
Defendant contends that the following remarks made by the prosecutor were inflammatory and prejudiced defendant’s right to a fair trial:
“If a man can come into our city, pull a gun on two of our citizens, rob them of between $30,000 and $40,000, register in this town under a false name, have his room occupied through the night of the 14th, and be used that night, and paid for for that night, make — have telephone calls placed to his home twice on the day of the robbery from here, not from Erie, but from here, and be the man they picked out in the back of this crowded courtroom— if he can do all those things and get away with it, because a couple of his booze-joint friends say he wasn’t here, then let’s close up shop and go home; because, we aren’t safe anymore.
“Because, any man who can’t get a couple of booze-joint friends to come in and testify for him isn’t worth his salt, even as a criminal.
“And, these men were pretty good criminals, they weren’t amateurs. They were pros. They knew what they were doing.
“Most amateurs can get a couple of friends to put in a good word for them, and I assure you that a pro can, with stories that you couldn’t check out for love nor money.”
In People v. Ignofo (1946), 315 Mich 626, the prosecutor stated that defendant was guilty and that, while the defendant had previously evaded detection, his deeds had now caught up with him. The Supreme Court in reversing defendant’s conviction stated at page 636:
“In the case at bar the statement of the prosecuting attorney was not an expression of his opinion. It was a statement of fact that should only have been made by a witness. While no objection was made to such statement at the time it was made or specific charge requested of the court, yet in our opinion such statement could not be eradicated from the minds of the jury and is reversible error.”
Similarly, in People v. Slater (1970), 21 Mich App 561, the prosecutor stated that he knew defendant was the one who killed the victim. .This Court held that while it is proper for the prosecutor to argue the testimony, he should not be permitted to. state what he personally thinks or believes of defendant’s guilt.
In the instant case the remarks of the prosecutor characterized the defendant as a professional criminal whose friends perjured themselves in testifying as to defendant’s alibi. These remarks were made as statements of fact and would certainly lead the jury to think that the prosecutor believed that de fendant was guilty. We consider the situation presented here to be controlled by People v. Hill (1932), 258 Mich 79, 88, where the Supreme Court stated:
“The prosecuting attorney should be permitted to argue the testimony, but has no right to state what he personally thinks or believes of defendant’s guilt except as shown by proof. If he has first-hand knowledge of facts which legitimately tend to show defendant’s guilt, it is his duty to present them under oath from the witness stand the same as any other witness. If his knowledge is only that based upon the testimony, he should confine himself to his duty as a prosecuting official.”
Based upon the cited authority, we find the remarks of the prosecutor were prejudicial and deprived the defendant of a fair trial.
Although defendant did not object to the prosecutor’s remarks and did not request a cautionary instruction by the trial judge, the failure to object is and should be a bar to review only when the goal of the objection would, in all likelihood, have eliminated the prejudice. People v. Humphreys (1970), 24 Mich App 411.
In the instant case, the goal of an objection by the defendant would have been a cautionary instruction by the trial judge. In our opinion an instruction would not have eliminated the prejudice created by the prosecutor’s inflammatory remarks. Defendant’s failure to object will not, therefore, bar this Court from affording the appropriate relief.
Defendant raises several other issues, none of which have any merit. We would note, however, that on retrial the defendant should not be questioned about any arrest which did not result in a conviction in accordance with People v. Brocato (1969), 17 Mich App 277.
Reversed and remanded. | [
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Danhoe, P. J.
This is a libel action brought by plaintiff teachers against defendant school board members. The school board publishes a newsletter dealing with school affairs and the plaintiffs contend that they were libeled in this publication. The defendants moved for a summary judgment on the grounds of failure to state a cause of action under G-CR 1963, 117.2(1) and the trial court granted the motion, stating only “that the court is of the opinion that based upon the pleadings as filed herein, no cause of action is stated”. *
For the reasons herein stated we reverse. In a motion for summary judgment it is axiomatic that all well-pleaded material allegations contained in the complaint are to be taken as true. Applying this to the instant case we must reverse because on the basis of the record before us there exist possible issues of fact. We note that on a more complete record, summary judgment under GCR 1963, 117.2 (3) might well be appropriate.
The defendants argue that viewed in the setting in which they were made the remarks were not libelous. The difficulty with this argument is that the record before us does not show what the setting was. In this regard we note that the newsletter in which the statements were made has not been made a part of the record.
The defendants also argue that the remarks applied to a group in general, and therefore, the plaintiffs have not been individually libeled. Chapman v. Romney (1967), 6 Mich App 36. The plaintiffs contend that they were individually defamed. Again, we are confronted by the problem that we do not have an adequate record. This question might well be resolved by the production of the newsletter or by affidavit, but on the record before us there is a question of fact.
The defendants’ final contention is that the summary judgment should be affirmed because they have an absolute privilege. We disagree. Under some circumstances a local government official may be held to have an absolute privilege. However, a review of the authorities convinces us that there is no absolute privilege in this case.
In Wachsmuth v. Merchants National Bank (1893), 96 Mich 426, it was stated that a resolution offered in the line of duty by a city council member was absolutely privileged. In Trebilcock v. Anderson (1898), 117 Mich 39, a mayor’s veto message was held absolutely privileged. In Madill v. Currie (1912), 168 Mich 546, the defendant was a chairman of a committee appointed by the board of supervisors to audit the accounts of the county treasurer. The defendant released the results of the audit and the court held that he had a qualified privilege stating that if the result had been released as the official report of the committee there would have been an absolute privilege. In Bolton v. Walker (1917), 197 Mich 699, a statement by a member of the Detroit Poor Commission during the course of proceedings before that commission was held absolutely privileged. In Powers v. Vaughan (1945), 312 Mich 297, the defendants were officials of the Detroit Department of Health. The plaintiffs had petitioned the city council for a license to operate as a masseur. The council referred this petition to the Department of Health and the department’s report was found to be absolutely privileged.
Under the foregoing authorities we must conclude that under some circumstances the members of the school board would have an absolute privilege. However, we also conclude that in this case the privilege is conditional. In the cases finding an absolute privilege the allegedly defamatory statements were made in the course of carrying out an official duty. The making of the statements that contained the allegedly defamatory remarks was an essential function of the official position held by the defendants. The publishing of a newsletter is not in the same category. The publication of a newsletter may be closely enough related to the official duties of the board members to give them a conditional privilege, but there is no absolute privilege.
The plaintiffs have alleged that the statements were made with knowledge that they were false and with the intent to injure them. This raises a fact question regarding the existence of malice and. therefore, summary judgment was inappropriate on this ground.
Reversed and remanded for further proceedings consistent with this opinion.
All concurred.
It would appear that this was the basis of the trial judge’s decision although we cannot be sure. | [
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Per Curiam.
Defendant appeals from a judgment granting plaintiff a divorce and other relief. Plaintiff cross-appeals from that portion of the judgment relating to the payment of arrearage in support money which accumulated while the action was pending in circuit court.
Defendant first contends that the testimonial record fails to establish jurisdiction. In this he is correct. However, exhibits offered and received in evidence establish jurisdiction.
Defendant contends that the alleged grounds for divorce were not proved. Our de novo review of the record does not support defendant’s contention, nor will that review support a finding by this Court that the trial judge abused his discretion with respect to support payments.
AfSrmed, with costs to plaintiff. | [
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] |
T. M. Burns, J.
On August 27, 1966, Jerome Blakeslee was riding in an automobile owned and operated by Bernard Butcher. A collision occurred between the Butcher automobile and one owned by Norma Jean Buys and operated by Carl Rhinebolt. Jerome Blakeslee sustained fatal injuries in the automobile collision.
Neither the owner nor the operator of the Buys’ automobile was insured. The Butcher automobile and its operator had liability insurance coverage in effect at the time of the accident. The policy, issued by the Riverside Insurance Company, provided for uninsured motorist coverage benefits of $10,000 payable for injuries or death to one person and of $20,000 payable on account of injuries or death to more than one person in a single accident.
The decedent had in effect at the time of the fatal accident a policy of automobile insurance issued by the defendant which also contained uninsured motorist coverage which provided for the same dollar amount of benefits as did the Riverside Insurance Company policy and was subject to benefits for injuries or death sustained by Jerome Blakeslee while riding as a passenger in an automobile owned and operated by another person.
Helen Blakeslee, in her capacity as the administratrix of the decedent’s estate, instituted a suit against Carl Rhinebolt, the driver of the uninsured automobile, to recover damages resulting from the alleged wrongful death of Jerome Blakeslee. She recovered on her suit in the amount of $112,007.71 with a reduction upon the judgment in the amount of $18,300 as monies received by the administratrix under the Riverside Insurance Company policy and from the Michigan Motor Vehicle Accident Claims Fund. The net judgment against Rhinebolt was, therefore, $93,707.71.
Subsequent to the judgment against Rhinebolt, plaintiff brought suit against defendant seeking recovery of the $10,000 uninsured motorist coverage provided for in the policy defendant issued to the decedent. The cause was submitted to the court upon stipulated facts and judgment was entered in favor of plaintiff for the full $10,000 of the policy coverage. From the judgment entered by the trial court, the defendant appeals as of right.
Defendant denied liability based upon an “other insurance” provision contained in the policy which provides:
“Other Insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV shall apply only as excess insurance over any similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
“Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”
Defendant cites Horr v. Detroit Automobile Inter-Insurance Exchange (1967), 379 Mich 562, in which our Supreme Court interpreted similar “other insurance” clauses. In that case the court held that the “other insurance” clauses in two separate policies of insurance required pro-rata contribution by the two insurance companies, but only until a total of $10,000, the maximum coverage contained in each policy, had been paid to the claimant. In other words each insurance company could be held liable for $5,000, no matter how large the claimant’s damages were.
The Horr decision is distinguishable from the case at bar, however, because the accident which gave rise to the controversy in Horr occurred in 1963. On January 1, 1966, the uninsured motorist coverage provision of the insurance code went into effect.
“No automobile liability or motor vehicle policy * * * shall be delivered or issued * * * in this state * * * unless coverage is provided therein * * * in limits for bodily injury or death set forth in Section 504 of Act No. 300 of the Public Acts of 1949, as amended, being Section 257.504 of the Compiled Laws of 1948 * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * # * because of bodily injury, sickness or disease, including death, resulting therefrom, unless the named insured rejects such coverage in writing * * # ”
The § 257.504 of the compiled laws referred to in the above statute is part of the Financial Responsibility Act and the minimum insurance limits therein required. Section 257.504(d) provides in pertinent part:
“Every such policy * * * is subject to a limit, exclusive of interest and costs, of not less than $10,000.00 because of bodily injury to or death of 1 person in any one accident.”
The Supreme Court in Horr specifically did not take the above statutory provisions into consideration in arriving at their decision in that case:
“We find no statutory or decisional laws of this State applicable in 1963 to the insurance clauses requiring our interpretation and the parties assert there were none. Consequently, our task is limited to determining the intent of the contracting parties.” Horr, supra, p 566.
The question before this court has not been decided since MCLA § 500.3010 (Stat Ann 1971 Cum Supp § 24.13010) has come into effect. The trial court was of the opinion that the statute makes mandatory the payment of minimum coverage and that the “other insurance” clause, being in derogation of the statute, is of no effect.
We agree with the trial court. The statute directs in mandatory terms that every policy of insurance provide the requisite uninsured motorist protection unless it is rejected in writing by the insured. The insurer is, therefore, no longer free, as he had been prior to the statute, to insert language restricting the coverage to less than the statute requires.
We are aware of the decisions in other jurisdictions which have held that the insurer may so limit the coverage despite similar statutory language. We are also aware of decisions in other jurisdictions which have interpreted similar statutory language to act as a bar to any such limitations by the insurer. We interpret our statute as mandatory and, therefore, hold that the “other insurance” clause contained in the policy in question is of no effect and the insurance company is liable to the full extent of the minimum coverage mandated by statute.
Affirmed.
All concurred.
Prior to the entry of the judgment against Rhinebolt, the administratrix had received payment from Riverside Insurance Company in the amount of $8,604.95, and $9,750 from the accident claims fund. The Riverside Insurance Company paid out all of the $20,000 of its coverage, but since a number of persons were injured in the accident, plaintiff’s pro-rata share came to $8,604.95.
Although the amounts actually received by the plaintiff totaled only $17,854.95, and the trial judge deducted $18,300 from her judgment, plaintiff, in pretrial statement, agreed to treat the payments as totaling $18,300.
MCLA § 500.3010 (Stat Ann 1971 Cum Supp § 24.13010).
MCLA § 257.501 et seq. (Stat Ann 1954 Rev § 9.2201 et seq.).
See Trindall v. Farmers Automobile Management Corporation (1967), 83 Ill App 2d 165 (226 NE2d 397).
See Bryant v. State Farm Mutual Automobile Insurance Company (1965), 205 Va 897 (140 SE2d 817). | [
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Levin, J.
Steven Robertson, 16 years of age, was killed when an automobile in wbicb he was riding as a passenger collided with another automobile. His mother, Irma A. Robertson, as executrix of his estate, commenced this action against a beer and wine licensee, Sam Y, Inc., and against Daniel G. Devereaux, the driver, and Stewart G. Phillips, the owner of the automobile in which Steven was riding.
The issues raised on this appeal concern only plaintiff’s claim against Sam Y. The complaint alleges that Sam Y made illegal sales of beer to Devereaux, who was a minor, that Devereaux became intoxicated, and that he drove the automobile in a grossly negligent manner. The plaintiff claims that Sam Y is liable under the dramshop act* “for all damages pleaded for the death of Steven Bobertson”.
The trial court granted Sam Y’s summary judgment motion on the ground that the personal representative of a deceased person is not a proper party plaintiff under the dramshop act.
The trial court and Justice O’Hara are of the view that decision in this case is controlled by the statement of our Supreme Court in Genesee Merchants Bank & Trust Company v. Bourrie (1965), 375 Mich 383, 389, that “under the dramshop act the personal representative of the decedent is not a proper party plaintiff.”
We read Bourrie differently. There the Supreme Court held that the survivors of Duane B. Owings, the deceased person who had become intoxicated in the defendant taverns and while in that condition was killed in an automobile accident, could not maintain an action for their loss against the taverns under the wrongful death act. Their remedy, said the Court, was the special remedy provided in the dramshop act. Bourrie also holds that survivors and dependents can only assert their claims under the dramshop act in their own names, not through a personal representative of the deceased person.
In the instant case the claim is not advanced on account of damages suffered by survivors or dependents, but in the interest of the injured person himself for the damages he himself suffered. If Steven Robertson had only been maimed he clearly would have a right to maintain an action for the damages he suffered. His death does not prevent a personal representative from advancing Steven’s claim to recover for the damages he suffered. Steven’s cause of action survives under an express provision of the dramshop act. The act provides in crystal-clear language:
“In case of the death of either party, the action or right of action given in this section shall survive to or against his or her executor or administrator.”3
In Plowman v. Satkowiak (1970), 22 Mich App 425, 428, on parallel facts, another panel of onr Court construed the quoted provision to permit the personal representative of an injured person who died to advance a claim under the dramshop act.
The appellate division for the fourth department, New York Supreme Court, ruled similarly in construing the New York dramshop act, which is substantially identical to our act; the clause concerning survival of actions is identical to ours.* **** Bator v. Barry (1953), 282 App Div 324, 326 (122 NYS2d 604). The New York Court declared that the statutory language was so plain and clear, “it is difficult to understand the theory upon which the defendant seeks a reversal of the order” of the trial court denying defendant’s motion to dismiss the complaint.
In Zucker v. Vogt (CA2, 1964), 329 F2d 426, the United States Court of Appeals for the Second Circuit, in construing the Connecticut dramshop act, reached the same result even though the Connecticut act does not expressly provide for the survival of actions; the Court relied on Connecticut’s general survival of actions statute. Similarly, see Wendelin v. Russell (1966), 259 Iowa 1152 (147 NW2d 188).
The Bourrie rule serves well in the factual context there presented. A wrongful death action may be maintained only if the decedent could have recovered in his own name. Frequently, as in Bourrie, the deceased person was himself intoxicated at the time he suffered physical injuries and cannot recover because of his own fault; under the dramshop act his dependents may, nevertheless, recover even though the decedent upon whom they are dependent was intoxicated or at fault. Under the wrongful death act, the plaintiff must prove that the defendant was at fault; under the dramshop act, there is no need to prove that a defendant tavern owner was at fault, only an unlawful sale causally related to plaintiff’s loss.
The statement in Bourrie that “under the dramshop act the personal representative of the decedent is not a proper party plaintiff” refers to an action by dependents seeking to enforce their claim for loss of means of support. In making that statement, the Court did not address itself to any factual situ ation other than the one before it. The Conrt did not focns on the claim of a non-dependent seeking to recover for physical injury to his person or property. Clearly, a person physically injured by an intoxicated person as a result of an unlawful sale has a claim under the dramshop act, and just as clearly under the express language of the act the action survives even if the claimant should die.
There is a substantial question regarding the amount of damages the plaintiff may recover. It appears that Steven Bobertson died immediately upon or shortly after the accident.* * The briefs do not discuss the damage question and we intimate no opinion, except that Steven’s claim which survived would not include damages for “the loss of services to his parents and the loss of his love and companionship” which were among the items of damage alleged in the complaint (see footnote 2).
Beversed and remanded for trial. Costs to plaintiff.
MCLA § 463.22 (Stat Ann 1970 Cum Supp § 18.993). See fn 4 for text.
Alternatively to the principal issue (plaintiff's standing to maintain this action), Sam Y contends that the summary judgment in its favor should be affirmed because Steven Robertson was not an innocent party. It is alleged that Steven was one of a group of four under-age high school boys who contrived a plan to obtain a case of beer one evening while they were driving around the city and that Steven was one of the boys who executed the plan and drank the beer.
Our disposition of this ease makes it unnecessary for us to consider and decide whether the distinction in the dramshop act eases between innocents and non-innocents has any application to a 16-year-old boy. What little there is in the record does not factually support a summary judgment on the alternative ground.
A toxicologist in the Wayne County medical examiner’s office was deposed, and he testified that he found no trace of alcohol upon an examination of the body of Steven Roberts on.
It does appear from the depositions that Steven was one of three boys riding around as passengers in Devereaux’s car, but this alone would not support the view that he was part of an illegal “conspiracy” to order and drink beer or that he participated in the fruits of the conspiracy. True, Harold Primak, a part-time delivery boy for Sam Y and a classmate of the four boys, testified on deposition that “they all chipped in”. However, he was then asked, “How do you know that?”, to which he responded, “Well they wouldn’t be arguing, you know, who would pay or anything like that, unless, you know, one guy must not have had enough, or something like that”. We think it obvious that Primak was guessing and that this testimony would not support a summary judgment based on a finding that there is not a genuine issue of fact as to whether Steven Robertson was innocent.
The complaint alleges that it is an action “for the personal injuries suffered by Steven Robertson, for pain which he suffered to his ultimate death, funeral expenses, burial expenses, the loss of service to his parents, and the loss of his love and companionship”.
“The only proper posture for this case would have involved the injured parties (for instance, the widow and the guardian of the children of deceased) suing defendants under the dramshop act.” Genesee Merchants Bank & Trust Company v. Bourrie (1965), 375 Mich 383, 390.
The full text of the dramshop act reads:
“Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall by such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury, and the principal and sureties to any bond given under this law shall be liable, severally and jointly, with the person or persons selling, giving or furnishing any spirituous, intoxicating or malt liquors as aforesaid, and in any action provided for in this section, the plaintiff shall have the right to recover actual and exemplary damages in such sum not less than $50.00 in each case as the court or jury may determine, but no surety shall be liable in excess of the amount of the bond required by this act. Any action shall be instituted within 2 years after the happening of the event. In case of the death of either party, the action or right of action given in this section shall survive to or against his or her executor or administrator, and in every such action by a husband, wife, child or parent, the general reputation of the relation of husband and wife or parent and child shall be prima facie evidence of such relation, and the amount so recovered by either husband or wife or parent and child shall be his or her sole and separate property. Such damages together with the costs of suit shall be recovered in an action of trespass on the case before any court of competent jurisdiction; and in any case where the parent shall be entitled to any such damages, either the father or mother may sue alone therefor, but recovery by one of such parties shall be a bar to suit brought by the other. The bond required by this act shall continue from year to year unless sooner cancelled by the surety. No surety shall cancel any bond except upon 10 days’ written notice to the commission.” MCLA § 436.22 (Stat Ann 1970 Cum Supp § 18.993).
In Plowman we considered Bourrie and the provision in the dramshop act expressly providing for the survival of the claim in the event of the death of “either party” (see fn 4 and accompanying text for the language of this provision), and held that the administratrix of the estate of a deceased minor, to whom a tavern owner had made an unlawful sale of intoxicating beverages, may maintain an action under the dramshop act against the tavern owner.
The New York statute does contain some additional language underlined below, viz.:
“Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, * * * .” The underlined words would appear to modify “by reason of the intoxication of any person”, not “any person who shall be injured”; the death referred to being that of the intoxicated person rather than of the injured person. In any event, the New York Court did not rely on the underlined words but on the survival clause in holding that an action could be maintained under the dramshop act by the administrator of a person injured by an intoxicated person who died enroute to the hospital shortly after an automobile collision.
The policy that actions shall survive has been made universally applicable to all actions and claims in the revised judicature act. It provides: “All actions and claims survive death”. MOLA § 600-.2921 (Stat Ann 1962 Rev § 27A.2921). This all-embraeive language replaced the provision in the Judicature Act of 1915 which provided for survival of only certain kinds of actions! See committee comment reprinted as annotation, 33 MOLA, p 730; 22 Stat Ann, p 129.
cf. Nelson v. Glover (1925), 231 Mich 229; Micks v. Norton (1931), 256 Mich 308; In re Beiersdorfer’s Estate (1941), 297 Mich 592.
In Michigan, where personal injuries cause death the action must be prosecuted under the wrongful death act and may not be continued, even if the action is commenced during the lifetime of the injured plaintiff, after his death under the survival act (MCLA §§ 600.2921, 600.2922 [State Ann 1962 Rev § 27A.2921, 1970 Cum Supp § 27A.2922] ).
But this limitation does not control where the claim arises under the dramshop act which has its own special survival provision. Cf. Genesee Merchants Bank & Trust Company v. Bourrie, supra.
This limitation in the survival and death acts serves to avoid redundancy in the damages awarded under the survival and death acts. In applying the dramshop act the objectives of awarding full compensation and avoiding redundancy will, no doubt, be accomplished by judicial construction; principles developed in like situations may be relevant: McCormick, Damages, § 94, p 337, et seq.-, Prosser, Law of Torts (3d ed), § 121, p 928, et seq.-, authorities cited in Speiser, Recovery for Wrongful Death, § 14.4, fn 14, et seq. | [
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R. B. Burns, J.
Plaintiff appeals the trial court’s decision granting defendant Cannon’s (Minnie Pearl’s) motion for summary judgment.
Plaintiff commenced suit based on a contract dated March 1, 1966, in which codefendant Slaggert Theatrical Agency agreed to furnish entertainment for plaintiff’s fall festival. The contract further provided that Slaggert had the right to substitute talent for any of the proposed acts with the consent of the plaintiff.
Plaintiff’s complaint alleged that defendant Cannon, through her agent, Slaggert, entered into the contract to be performed in the village of Kalkaska; that Cannon failed to appear and Slaggert failed to substitute talent in place of Cannon. Plaintiff asked damages for defendants’ breach of contract.
Defendant Cannon in her answer denied that Slaggert was her agent and that she was a party to the March 1, 1966, contract. She alleged, as affirmative defenses, that she had entered into a contract on March 8, 1966, with Slaggert, agent of the plaintiff, to appear at the trout festival but that the contract relieved her of any liability for its breach in case of interference with her means of transportation; that due to inclement weather her plane could not take off from New Philadelphia, Ohio and, therefore, she was excused from appearing at plaintiff’s festival.
After the pretrial conference defendant Slaggert filed a motion for summary judgment based on an accord and satisfaction as plaintiff had withheld from monies paid to him the sum due for the appearance of Cannon. The motion was unopposed and a summary judgment entered for Slaggert.
Defendant Cannon then filed a motion for summary judgment based on GCE 1963, 117.2 (3 ). The thrust of the motion was that Cannon would admit for the purposes of the motion only that Slaggert was her agent, that there was no genuine issue as to any material fact and that she was entitled to a judgment as a matter of law.
The trial judge in his opinion stated:
“The court having heard the argument of counsel in open court, and having reviewed the law cited by counsel, has reached the conclusion that the motion for summary judgment should be granted.”
Defendant in her trial brief for the proposition stated:
“While a person contracting with an agent for a principal may hold either the agent or principal, he cannot recover from both and if, with full knowledge of the facts material to his rights he elects to hold the agent, he thereby discharges the principal. Such an election of remedies must be made because the liability of the principal and agent is that of only one party to one contract, and the third person must name the party with whom he contracted. The liability of the principal and agent is not joint, nor is it several but rather alternative in character.” 3 CJS, Agency, § 248; 3 Am Jur 2d Agency §§ 308, 309, 342. Theory also confirmed in 1 Restatement Agency, 2d, § 210.
This statement is almost a direct quotation from 3 CJS, Agency, § 248, pp 175, 176, with one exception. The exact quotation starts, “While a person contracting with an agent for an undisclosed principal * * * ”. (Emphasis supplied). All of the other citations mentioned in the brief deal with undisclosed principals.
This is not the law when a third party is dealing with a disclosed or partially disclosed principal.
“ ‘Where the principal is disclosed, and the agent is known to he acting as such, the latter cannot he made personally liable unless he agreed to be so.’ Whitney v. Wyman, 101 US 392 (25 L Ed 1050).” Hall v. Encyclopaedia Britanmca, Inc. (1949), 325 Mich 35, 38. See also Huizenga v. Withey Sheppard Associates (1969), 15 Mich App 628, 633.
The general rule throughout the country involving liability of disclosed principals is stated in 1 Restatement Agency, 2d, § 184, p 417:
“(1) Recovery of judgment against the agent of a disclosed or partially disclosed principal for failure of performance of a contract to which the agent is a party does not thereby discharge the principal unless the agent and principal were joint contractors.”
The trial judge applied incorrect substantive law in granting the summary judgment.
Reversed and remanded for trial. Costs to plaintiff.
Munro, J., concurred.
“.2 Grounds. The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds: * * *
“(3) that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.” | [
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Per Curiam.
Plaintiff and defendant were married in 1958, and from this union four daughters were born. Plaintiff husband filed suit for divorce in 1965, alleging that defendant had neglected the children and had become involved in an improper relationship with another man. Plaintiff was granted temporary custody of the children. The divorce was finalized in 1966 and plaintiff was granted permanent custody of the children after the court determined that the change of custody from the plaintiff father to the defendant mother would not be beneficial to the children.
Subsequent to the divorce, both parties remarried, and the second marriage brought stepchildren into the respective families.
On June 16, 1970, defendant filed a petition for change of custody, which was denied by the trial court following a hearing at which both parties testified and presented their witnesses.
The children’s best interest is the guiding principle in deciding child custody matters. See PA 1970, No 91 (MOLA §722.25; Stat Ann 1971 Cum Supp § 25.312[5]); Sweet v. Sweet (1950), 329 Mich 251; Tarr v. Pollock (1970), 25 Mich App 437; Lamky v. Lamky (1970), 29 Mich App 17.
The lower court’s decision was influenced by the evidence which indicated that the children love and respect their father, as well as by the desire of the trial judge to maintain continuity. The trial judge acknowledged that the father had provided the sole stability for the children for five years prior to the instant action.
The standard of appellate review of child custody cases is set forth in PA 1970, No 91 (MCLA § 722.28; Stat Ann 1971 Oum Supp § 25.312 [8]) :
“To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”
Having reviewed the entire record, we conclude that the trial court’s order denying defendant’s petition for a change of custody was properly made.
Judgment affirmed. | [
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] |
Holbrook, P. J.
This action was brought in the Circuit Court for Kent County by plaintiffs against defendant for a declaratory judgment of the rights of the parties under a written lease. Plaintiffs also sought reformation of the lease and an injunction restraining defendant from interfering with plaintiffs’ construction of a proposed additional building in the Rogers Plaza owned by plaintiff Connecticut Mutual Life Insurance Company.
A resume of the background leading up to the bringing of this action is advisable.
In 1959, Pioneer Shopping Center, Inc. (hereinafter referred to as Pioneer), the former owner of the land involved herein, was in the process of developing and building a modern, enclosed, air-conditioned mall to he known as the Rogers Plaza.
On July 22, 1959, Pioneer, as lessor, and the S. S. Kresge Company (hereinafter referred to as Kresge) entered into a lease for 8,000 square feet in the mall for a primary term of 20 years with options to Kresge to extend the lease for three five-year periods. This permitted the term to he extended to 1995. The minimum rental provided to he paid by Kresge was $32,000 per year plus 4% of the gross annual sales exceeding $710,000. Kresge also agreed to pay up to $1,800 per year for its pro rata share of the cost of maintaining the parking area.
Paragraph nine of the lease provides for the parking area to be maintained by Pioneer and reads in pertinent part as follows:
“9. Landlord shall provide as of commencement date of this Lease and shall maintain for the full term and any extensions thereof at its own cost and expense in the areas designated ‘Parking’ on Exhibit ‘B’ Parking Facilities either in ratio of four (4) square feet of parking area to one (1) square foot of gross building area, or sufficient to accommodate not less than three thousand (3000) automobiles, whichever shall be the greater. Said Parking Facilities including necessary sidewalks and driveways shall be for the free parking of automobiles of invitees of tenants of the Commercial Development and shall be located and arranged substantially as shown on Exhibit ‘B’.”
In 1961, Pioneer determined that it could not furnish a parking area ratio to gross building area of 4 to 1 and wrote Kresge the following letter:
“June 28, 1961
“Reply to: Pioneer Shopping Center, Inc. 1029 Portage Street Kalamazoo, Michigan
“S. S. Kresge Company 2727 Second Avenue Detroit 32, Michigan
Attention: Mr. W. H. Shipley
Real Estate Representative
Gentlemen:
“Rogers Plaza Shopping Center Wyoming, Michigan
“In accordance with our conversation in your office on Thursday, June 22, 1961, we are hereby requesting a modification to Article 9 of the lease with Pioneer Shopping Center, Inc., dated July 22, 1959. The modification consists of two items, namely,
“1. Reduction of ‘ratio of four (4) square feet of parking area to one (1) square foot of gross building area,’ to 'two and seven tenths (2.7) to one (1).’
“2. Reduction of ‘3000 automobiles,’ to ‘2700 automobiles,’
“Our request for this modification is necessitated by the- fact that the buildings already under construction will only produce a ratio of 3.617 to 1, instead of 4 to 1, and Metropolitan Life Insurance Company has requested that this matter be clarified before advancing additional funds. We have also always planned on a potential addition of a high grade department store requiring a minimum of 50.000 square feet of ground floor area, and possibly 100.000 square feet of gross building area. Such an addition would reduce the ratio of gross building area to parking area to 2,679 to 1. “The reduction of 3,000 automobiles to 2,700 automobiles is intended to provide for the reduction of parking at the time the department store addition is added to the center.
“S. S. Kresge Company “-2- 6/28/61
“The following statistics may be helpful in your consideration of our request:
“Gross land area per letter from Williams & Works, dated 6/26/61 1,478,862 sq. ft.
“Ground floor rentable area per Willard Thorsen, Architect 251,837 sq. ft.
“Land available for parking, walks, mall, etc. 1,227,025 sq. ft.
“Gross building area
“Ground floor 251,837 sq. ft.
“Second floor 49,551 sq. ft.
“Basement 31,528 sq. ft.
“Penthouse 4,869 sq. ft.
“Mezzanine 1,415 sq. ft.
339,200 sq. ft.
“Ratio of gross building area to land available for parking [sic] 1,227,025 to 339,200 = 3.617 to 1
“Ratio after expansion
“1,227,025 to 339,200 “— 50,000 100,000
“1,177,025 to 439,200 = 2.679/1
“Our request is further supported by the fact that we have recently obtained approval from W. T. Grant Company for a reduction of ratio from 3.5 to 1 to 2.8 to 1, and a reduction of automobiles from 3,000 to 2,700. A copy of a letter from W. T. Grant Company is enclosed. We have been assured by Mr. Ed. Pehrson of Montgomery Ward & Company that they will reduce their ratio requirement from 3.5 to 1 to 2.7 to 1, and as showed you in your office, their automobile requirement was originally only 2,700 automobiles.
“We are extremely anxious to obtain this modification in order to receive additional construction financing by having Metropolitan Life Insurance Co. assure the National Bank of Detroit of the maximum take-out permitted by our permanent financing commitment. An examination of all our leases to date shows only three exceptions, and we have already cleared up Montgomery Ward & Company and W. T. Grant Company. Your cooperation will be greatly appreciated.
“We have enclosed, for your use, copies of areas as computed by our architects, and our parking lot layout.
“Very truly yours,
“PIONEER SHOPPING CENTER, INC.
“[signed] Robert D. Britigan
“Robert D. Britigan
“Executive Vice President”
As a result of this letter, paragraph nine of the lease was changed by an amendment to the lease, dated July 7, 1961, as follows:
“1. Article 9 of said Lease Agreement, designated in the margin as ‘Parking Facilities’ is amended as follows:
“A. In line 3 of said paragraph, the words ‘four (4) square feet of parking area to one (1)’ are deleted and in substitution therefor the following words are inserted:
“ ‘two and seven tenths (2.7) square feet of parking area to one (i) * * * .’
“B. In lines 4 and 5 of said paragraph, the words ‘three thousand (3000)’ are deleted and in substitution therefor the following is inserted:
“ ‘ * # * two thousand seven hundred (2,700) * # # y yy
In January 1966, Pioneer sent Kresge a letter agreement which was executed by both parties which permitted all tenants of Rogers Plaza to have the same plot plan. This letter agreement reads as follows:
“S. S. Kresge Company 2727 Second Avenue Detroit, Michigan 48232
“Dear Mr. Cook:
“As a tenant in Rogers Plaza Shopping Center, your lease, and possibly your memorandum of lease, had attached to it an Exhibit ‘A’ (or in some cases, it was known as Exhibit ‘B’), which was a plot plan of the Center purporting to show the parking areas, a future building at the East end of the Center and, in some cases, a free standing bank building located in the Northeast corner of the Center. These plot plans were changed several times during the leasing period and there is a definite lack of uniformity in them.
“Attached hereto is a plot plan of the Center, prepared by Daverman Associates, dated August 26, 1965. This plot plan shows the location of present and future buildings and contains general information concerning the parking areas as they now exist and as they will exist when, as and if all future buildings are completed.
“Pioneer Shopping Center desires to substitute this plan in all leases and memorandums of leases as a uniform Exhibit ‘A’ after which Pioneer will take its first step in the expansion of the Center by entering into a formal agreement for the construction of the free standing Old Kent Bank Building. “It is proposed that when you, as a tenant, have approved the substitution of the attached plot plan for whatever plot plan was attached as an exhibit to your lease and memorandum of lease, this substituted plot plan will act as an amendment to your lease insofar as your lease contains any restrictions on the construction of future buildings or the curtailment of parking, where such restrictions are different from the attached exhibit dated August 26, 1965.
“If this is satisfactory to you, please initial the exhibit attached to the enclosed copy of this letter and sign and return the enclosed copy of this letter. Keep the original letter and the copy of the exhibit which is attached to it for your files.
“We will appreciate your early attention to this matter, so that we may consummate our plans as soon as possible.
“Very truly yours
PIONEER SHOPPING CENTER, INC.
By s/_
M. P. Doyle
Executive Vice President
January 25, 1966
As a tenant of Rogers Plaza Shopping Center under a written lease with Pioneer Shopping Center, Inc., as landlord, we agree to the above.
S. S. Kresge Company (Tenant)
By s/_ John B. Hollister, Vice Pres. (Title)”
The plot plan attached to the letter agreement is reproduced in the appendix to this opinion and marked a part of exhibit 11, and the plot plan attached to the original lease is reproduced also and marked a part of exhibit 2.
It is undisputed that this mall was to be in the shape of a dumbbell with a large department store on each end. Montgomery Ward was located on the west end, but Pioneer was unsuccessful in obtaining a department store to locate on the east end of the mall.
Pioneer failed to make a profit on the operation of the Plaza and became desirous of selling its fee title, subject to a mortgage, to Connecticut Mutual Life Insurance Company (hereinafter referred to as Connecticut Mutual) with some of the owners of Pioneer (Erwin Rogers and Patrick Doyle) forming a new corporation, Rogers Plaza, Inc., which would then take a lease-back from Connecticut Mutual for the Plaza under terms that were agreed upon.
These actions were accomplished in June 1966, and the lease from Connecticut Mutual to Rogers Plaza, Inc., dated July 1, 1966, was executed by both parties. In the latter part of 1969, and the forepart of 1970, Rogers Plaza, Inc., was in financial difficulties because the income from the mall had decreased and the expenses made it an unprofitable venture. It was believed that if they were able to get a department store as a tenant on the east end of the mall, it would bring in more business and Rogers Plaza, Inc., might be able to survive. Rogers Plaza, Inc., had previously endeavored to find a tenant that would be satisfactory to be added to the east end of the mall, and in the latter part of 1969 held conversations with representatives of Jewel Companies, Inc., (hereinafter referred to as Jewel) for one of their Turn-Style stores to be located in the Plaza. Finally, Jewel informed Rogers Plaza that they would locate in plaintiffs’ mall only if they could have a building 250 by 400 feet (or 100,000 square feet of space) on the ground level. Because Rogers Plaza could not raise the funds to construct the building and possibly for other reasons, it released its interests as to the proposed Turn-Style location under their lease to Connecticut Mutual who agreed to undertake the project and lease direct to Jewel Companies, Inc. At this point in time, representatives of Connecticut Mutual proceeded to obtain consents from the 32 tenants in the mall to permit the Turn-Style store to become a part of the east end of the Plaza with 100,000 square feet of space on the ground level.
The respective plot plans, made a part of defendant’s lease, indicated a reservation of space at the east end of the mall to accommodate a building of 250 by 200 feet (or 50,000 square feet of ground level space) and a possible second story or basement of similar size accommodating 100,000 square feet of usable space.
In January 1970, Rogers Plaza, Inc., and Connecticut Mutual sent out letters to the tenants of the plaza with an amended plot plan showing the location of the Turn-Style store as described above and asking that an enclosed consent form be signed and that the plot plan enclosed be substituted for that attached to the respective leases. Most of the tenants executed the consents without requiring any concessions in their lease or further benefits. However, as appears in the testimony of Mr. Doyle, president of Rogers Plaza, Inc., certain tenants did require and receive concessions and benefits when they gave their consent. This testimony, in part, is as follows:
“Q. I think you indicated in your complaint, as to which you stated under oath that it was accurate, that consents had been obtained from all the other tenants at Rogers Plaza with reference to proposed construction of the Turn-Style Store, is that correct, other than Kresge?
“A. I think that is substantially correct, yes.
“Q. And you realize here in open court, and in the position taken in the pleadings, that Kresge has given its consent provided it be on two levels?
“A. That consent is meaningless, absolutely meaningless.
“Q. Are the contracts on which that consent is based likewise meaningless, Mr. Doyle?
“Mr. Neath: That calls for a conclusion.
“Mr. Hunting: I will withdraw the question.
“Q. You deemed it necessary, did you not, Mr. Doyle, to seek the formal consent of all other tenants with reference to this proposed construction?
“A. Yes.
“Q. Montgomery Ward, as a condition to giving its consent, demanded a number of repairs be made, did it not?
“A. I don’t know about repairs. I think improvements is a better word.
“Q. I think there has been some testimony that the cost of those improvements may be approximately $80,000?
“A. $80,000 to $100,000, the figures I have.
“Q. And the performance of these improvements was attached as a condition to the consent given by-Montgomery Ward?
“A. I believe that is correct.
“Q. There isn’t any question about it, is there? Were there not six or seven conditions imposed by Montgomery Ward with reference to giving of its consent, all of them pertaining to improvements or repairs that must be made ?
“A. I believe I read that, yes. If that is the same letter, I so testified.
“Q. Did Cunningham Drugs give you an unqualified consent without attempting to exact some special terms from you?
“A. They sure didn’t.
“Q. As a matter of fact, they were concerned about Turn-Style as a competitor, were they not?
“A. Yes.
“Q. As a matter of fact, they insisted that Turn-Style could not sublet any particular portion of the Turn-Style for purposes of selling prescription drugs ?
(‘A. Well, I think you have to ask that question in its proper context. Turn-Style does have a pharmacy and will operate a pharmacy in their store. Now, to sublet the pharmacy is something else again. Cunningham Drugs does not want Muir Drugs or somebody else walking in there and becoming their direct competitor, is the reason for that requirement.
“Q. Cunningham Drugs also exacted some other special conditions, did they not?
“A. No.
“Q. Is it your testimony under oath that they did not attempt to exact, and as a matter of fact, exact a reduction in the percentage rentals that they are to pay to you?
“A. That is correct.
“Q. So that that is yet another condition to their consent, is it not?
“A. That’s right.
“Q. Do yon recall the type of consent the Lerner Store gave yon?
“A. Qualified.
“Q. Qualified in a way that reduced the rent, did it not?
“A. Didn’t reduce the rent. It reduced the percentage rental.
“Q. Would that not have the potential effect of reducing the rent?
“A. Yes. If they do volume it will reduce somewhat, yes.
“Q. I believe you indicated that it was your belief in event Turn-Style Store came in it would, in fact, increase the volume of all the other tenants.
“A. That’s what we are gambling on, including S. S. Kresge.
“Q. Assuming that that gamble turns out to be correct, you then agreed with Lerner that the percentage rentals could be reduced in the future from that that was contained in their lease?
“A. The percentage rent factor, the factor not the percentage rent dollars. There is a great difference.
“Q. Did you change the percentage rent or did you change the base?
“A. The percentage rent factor.
“Q. Perhaps we are playing with words, Mr. Doyle. Would it not be fair to say that what they exacted from you in event their business increased was a reduction in total rent they might have to pay to you?
“A. Depending on their volume. This is the key. They could pay me a lot more rent if they did some volume, than they are paying us now.
“Q. You agree with me, however, that those were conditions that those particular tenants attached to their consent?
“A. Of course.”
Considerable correspondence and meetings between representatives of Rogers Plaza, Inc., and Connecticut Mutual with Kresge took place seeking Kresge’s consent to the adding of the Turn-Style store to the mall. Kresge consistently refused consent. There are conflicting positions by the contesting parties as to the reason for the refusal. It appears that Kresge advanced five reasons as follows :
(1) The proposed expansion according to the plot plans was to be limited to 50,000 square feet of ground level with a possible second story or basement.
(2) The use of the additional 50,000 square feet of land would diminish the parking space available for the plaza.
(3) The Turn-Style operation would not best serve the purpose of attracting the most patrons for cross traffic to help the other tenants.
(4) Turn-Style deals mainly with the same goods sold by Kresge except that they have a greater depth in merchandise.
(5) The use of the additional 50,000 square feet of ground space for Turn-Style violates the lease provision as to the ratio of square feet of parking to the square feet of buildings in the plaza.
On January 7, 1970, Connecticut Mutual entered into a lease with Jewel for 20 years plus options for renewals covering the subject land and proposed building to be constructed in the mall. This lease was subject to the consents being obtained and the construction of the building ready for occupancy at a time certain. The second amendment to the lease provided for Connecticut Mutual to commence a declaratory judgment action on April 20, 1970, against defendant if its consent had not been obtained by that time. The third amendment provided for cancellation of the lease by Jewel if the consent or a favorable judgment had not been obtained by July 15 or August 15 at the option of Jewel. On April 1, 1970, by letter, Kresge gave notice of its intent to take legal action to prevent this expansion in words as follows:
“April 1, 1970
“Rogers Plaza, Inc.
1110 Rogers Plaza
Wyoming, Michigan 49509
“Re: Rogers Plaza — Kresge Store #477
Lease entered into 7-22-59_
“Gentlemen:
We are advised by Mr. Jack M. Bowie, representing Connecticut Mutual Life Insurance Company, that an addition to subject shopping center is to be commenced April 1, 1970. We are advised the addition comprises One Hundred Thousand (100,000) square feet of additional ground floor structure to be located at the east end of the existing mall as depicted on Jensen and Jensen site plan dated March 23, 1970.
“You are respectfully advised we deem the above described enlargement to be in violation of the terms and conditions of our lease and that if construction is commenced, we expect to take whatever legal action is necessary in the premises.
“Yours very truly,
S. S. KRESGE COMPANY
By s/_
C. M. Booker, Vice President”
The plaintiffs’ complaint was filed May 7, 1970. Pre-trial was held May 28, 1970, and the cause was advanced for hearing because of the exigencies present. The case was tried June 29 and 30 and July 1. An opinion was rendered July 16, and judgment filed July 23, 1970.
It is undisputed in the record that the parking to building ratio of 4 to 1 and the amended ratio of 2.7 to 1 were not possible of performance. How the parties computing these ratios could be so wrong twice is difficult to understand. The plot plan, with measurements, was accurate. Both plaintiffs and defendant could have ascertained the correct ratio according- to the plot plan — plaintiffs’ predecessors tried and failed and we are not informed as to whether defendant made any efforts in this regard. Defendant claimed that if the expansion for Turn-Style had been as understood by the parties from the inception of the lease, i.e., 50,000 square feet of ground floor space and 50,000 square feet of either basement or second floor space, the ratio would then have been 2.32 to 1. With this contention we must agree.
The learned trial judge concluded in his written opinion as follows:
“1. That the ratio of two and seven-tenths (2.7) square feet of parking to one (1) square foot of gross building area is inoperative and of no effect, being an impossible ratio borne of mutual mistake by the parties and contrary to the intent of the parties.
“2. That the provisions of the defendant’s lease (Exhibit B) Exhibit No. 1, as amended, does not prohibit plaintiffs from further development of Rogers Plaza Shopping Center by the addition of a building occupying 100,000 square feet of ground space.
“3. The court further declares that since the ratio figures supplied before and at the time of the trial are inconsistent and vague and undetermined with any degree of certainty, and since the total number of parking spaces can be ascertained, plaintiffs must maintain parking facilities which will accommodate at least 2,700 parked automobiles.
“4. That the defendant, its agents and employees, are permanently enjoined from in any way, directly or indirectly, interfering with plaintiffs from going forward on the further development of Rogers Plaza Shopping Center by the inclusion of a department store occupying 100,000 square feet of ground space.
“5. That plaintiffs’ argument re the acquisition of 50,000 additional square feet of land space for parking is a valid proposition to assure adequate parking in the future. Said additional property should be held in reserve pending its need to assure at least the 2,700 parking spaces referred to above (paragraph 3) shall be available.
“6. In summation that the finding of mutual mistake as to a fixed ratio of automobiles to occupied building area and the impossibility of performance as per plat plans.
“The court grants defendant’s motion to dismiss plaintiffs’ claim of waiver and estoppel.
“This being an equitable proceeding, the court does not find any proven damages as alleged in plaintiffs’ complaint and therefore does not award any damages without further proofs. Costs of this action, plus reasonable attorney fees are awarded to the plaintiffs.”
The defendant did not request a stay of proceedings pending its appeal to this Court. Connecticut Mutual promptly proceeded to construct the Turn-Style building. At the time of oral argument in this Court, we were informed that the building was nearly completed.
On this appeal defendant raises several issues which we restate as follows:
(1) Did the trial court commit error in not requiring plaintiffs to comply with the parking area to building area ratio of 2.7 to 1?
(2) Did the trial court commit error in permitting plaintiffs to disregard the specific and relevant language in the lease and plot plans limiting future expansion to 50,000 square feet on ground level and in permitting plaintiffs to expand the mall by using 100,000 square feet of ground level?
(3) Does plaintiffs’ construction of the Turn-Style building on 100,000 square feet of land area constitute a breach of defendant’s lease?
I
The original lease was on a form furnished by Kresge and the 4.0 to 1 ratio was inserted by Kresge and agreed to by Pioneer. The amendment changing the ratio to 2.7 to 1 was at Pioneer’s request and was its ratio which was agreed to by Kresge. It is undisputed that both ratios were impossible of performance. Pioneer’s mistake in making the ratio 2.7 to 1 is difficult to understand. However, there is no evidence that it was made in bad faith and, evidently, Kresge likewise determined it to be a proper ratio. At the time neither party knew it was impossible of performance.
In dealing with a question of impossibility of performance, our Court in the case of Bissell v. L. W. Edison Company (1967), 9 Mich App 276, sought light on the subject in 84 ALR2d 12, § 5. Under these circumstances, we likewise turn to the same source and find on pages 31, 32:
“Impossibility of performance may be classified as original impossibility or supervening impossibility. The former is impossibility of performance existing when the contract was entered into, so that the contract was to do something which 'from the outset was impossible; whereas supervening impossibility is that which develops some time after the inception of the contract.
“A treatise states that where performance is impossible because of facts existing when the promise is made, the promise is void unless the risk of its impossibility is assumed, as where the parties know that performance may be impossible and base their contract upon this assumption. Where the impossibility of performance is known to both parties at the time of making the agreement, the promise is not binding. However, nonperformance of a promise is not excused because of impossibility where it is impossible because of facts which the promisor alone knew when he made the contract. 12 Am Jur, Contracts § 363.
“Williston comments that existing impossibility known to one party and not to the other would probably render the transaction voidable for fraud. He further states that if unknown to both parties there is little occasion to distinguish existing impossibility from supervening impossibility. 6 Williston, Contracts (Rev ed) § 1933.
“With respect to original o.r existing impossibility, the pertinent rule of the Restatement of Contracts provides as follows: ‘456. Existing Impossibility. Except as stated in § 455, or where a contrary intention is manifested, a promise imposes no duty if performance of the promise is impossible because of facts existing when the promise is made of which the promisor neither knows nor has reason to know.’ ”
As in Bissell, supra, we find further guidance on the law of impossibility of performance in a case where there is partial impossibility, as is present in the instant case, by turning to 6 Williston, Contracts (Rev ed), § 1956 where, on pp 5487, 5488, the authors state as follows:
“In an instructive opinion in a lower court in New York, while using the prevailing terminology of implied conditions, Rodenbeck, J., recognized that ‘these terms are implied in the contract by force of the law itself, and not because the parties had them in mind. Whether we approve of their insertion upon the theory that had the attention of the parties been called to the conditions giving rise to the application of the rule, they would have omitted any reference to them because obviously covered by the law, or upon the theory that they would have regarded them as just provisions to have inserted.’
“Since the qualification of the literal terms of the promise is imposed by the law, on principles of justice, not because of the expressed intention of the parties, the extent of the qualification depends merely on what is just. ‘The conditions that rendered performance impossible do not terminate the contract ab initio, and vitiate what has been done and what remains to be done that is capable of execution. The conditions may be of such an extent as to amount to a substantial abrogation of the entire contract, or they may relate to an insignificant part of the contract, but they excuse performance only to the extent to which performance is impossible, and leave what has been done valid permitting a recovery therefor, and may not excuse performance of the remaining work. No general rule can be laid down which will apply to all cases, but each case must be decided upon its own facts, and that this course can be taken and justice done according to the facts in each case unhampered by written rules is due to the great flexibility of the common law which is its chief merit.’ ”
Under the facts in the present case, we conclude that partial impossibility of performance was present and plaintiffs were properly excused by the trial court from performing that part of the lease contract.
II
The defendant asserts error in the trial court’s ruling that the lease and plot plans did not prevent plaintiffs from utilizing 100,000 square feet of land area for the Turn-Style building. It appears that the trial judge in making this ruling relied mainly on two premises: (1) the interpretation of the word “substantially” as used in paragraph nine of the original lease:
“Said Parking Facilities including necessary sidewalks and driveways shall be for the free parking of automobiles of invitees of tenants of the Commercial Development and shall be located and arranged substantially as shown on Exhibit ‘B’,”
and, (2) the interpretation of the effect of the letter from Mr. Britigan to Kresge written for the purpose of obtaining an amendment to the lease changing the ratio of parking area to buildings from 4.0:1 to 2.7:1, and the conclusion that Kresge by signing the amended lease agreed to the terms of the letter, i.e., that the expansion was limited only to a minimum ground space of 50,000 square feet and did not limit the maximum.
As to premise (1), “substantially” is defined in Webster’s Third New International Dictionary as “in a substantial manner: so as to be substantial”. “Substantial” is defined as “consisting of, relating to, sharing the nature of, or constituting substance * * * ”. In 17A CJS, Contracts, § 508, p 814, “substantial performance” is defined:
“Substantial performance means not doing the exact thing promised, but doing something else that is just as good, or good enough for both obligor and obligee. It requires a good-faith attempt to perform without intentional or material departures.”
The lease required plaintiffs to substantially maintain the parking area set forth in the plot plans. The only encroachment for future development purposes of the parking area to the east is a space outlined by dotted lines of an area 250 feet by 200 feet. The evidence clearly shows that up to the time of Jewel’s demand for a building of 100,000 square feet on the ground level, there was only the intention by plaintiffs and Pioneer, the prior owner, to expand the mall to the east by a two-story department store using only 50,000 square feet of land area.
The plot plans are an integral part of the lease and are vital to controlling the proper development of the Plaza. Considering the definitions of “substantially” as stated here, we cannot agree that utilizing twice as much land for the Turn-Style building as reserved in the plot plan for future expansion at the east end of the mall constitutes a substantial compliance with the lease. Hempstead Turnpike Corp. v. Tracco Hempstead, Inc. (1958), 14 Misc 2d 554 (177 NYS2d 778). In fact, it reduces the space reserved for parking by 50,000 square feet which is sufficient land to park from 250 to 300 automobiles.
As to premise (2), based upon the interpretation of the language of the letter from Mr. Britigan, Executive Vice President of Pioneer, to Kresge dated June 28, 1961, for the purpose of obtaining Kresge’s permission to amend the ratio of parking to buildings from 4.0:1 to 2.7:1, wherein it is stated as follows:
“We have also always planned on a potential addition of a high grade department store requiring a minimum of 50,000 square feet of ground floor area, and possibly 100,000 square feet of gross building area. Such an addition would reduce the ratio of gross building area to parking area to 2.679 to 1.”
The trial judge interpreted the words “requiring a minimum of 50,000 square feet of ground floor area, and possibly 100,000 square feet of gross building area” to mean that the use of the word “minimum” meant that there was a maximum, and that by signing the amendment to the lease, Kresge agreed that the minimum and not the maximum was 50,000 square feet of ground floor space for future expansion.
This letter can be read consistent with Kresge’s position, i.e., that it merely stated a desire to get a tenant for the east end of the mall with at least 50,000 square feet of building area and possibly a second floor or basement of the same size which would total 100,000 square feet. In any event, the statement in the letter alone, no matter how we interpret it, did not change the written terms of the contract, for it was a unilateral statement and the letter was not signed by Kresge.
We conclude that the lease and plot plan did not permit the plaintiffs to utilize double the amount of land reserved for future expansion in satisfying Jewel’s requirements for a building of 100,000 square feet on the ground level.
Ill
Counsel for defendant at the oral argument stated in part as follows:
“It is our opinion that there has been a breach of the lease between the parties, that the lower court was called upon to declare the rights of the parties and interpret the lease. We are seeking a remand with a decision that the plans violate the lease and we would be frank to admit that unfortunately, considering the promptness with which they proceeded on construction that there would be little likelihood that any court would order that this building be razed or altered inasmuch as that might be impossible other than at a substantial cost. The rights of my client in that the lease has been violated as the pretrial order of the court indicated and the question of damages to my client was to be reserved and was not tried at the lower court level. We feel that there has been a breach of our lease, that it should be remanded and there should be a determination of damages to my client based upon an obvious and relatively quick continuing breach of the lease. * * * Kresge agreed that that building could be built on two levels with 50,000 feet, one on top of another, but would not consent to an additional loss of 50,000 square feet ground level which could be used for parking now or even as late as 1990 when the lease and further options to be renewed might occur.”
In view of our ruling on issue II above, it follows that we must also rule that the construction of the 100,000 square foot building by Connecticut Mutual for Turn-Style constituted a breach of defendant’s lease. We further agree with counsel for defendant that there is little likelihood that any court would order that this building be razed or altered and this Court declines to so order.
Inasmuch as we conclude that the lease has been violated and breached, it is necessary to require that the matter be remanded to the trial court for a determination of damages.
Affirmed in part and reversed in part and remanded to the trial court for further proceedings not inconsistent with this opinion.
Costs to defendant.
All concurred.
Mr. Howard L. Green, witness for the defendant, testified in part as follows:
“Q. The phrase ‘dumbbell’ in describing shopping centers has been used in this trial, Mr. Green. Would you define or indicate what that phrase means to you, and please relate that if possible to Rogers Plaza in particular?
“A. A dumbbell shaped shopping center really is an elongated mall of this sort, or an elongated strip which has a major tenant on either end.
“Q. And do you have an opinion, Mr. Green, as to whether the advent or the construction of the Turn-Style Store, as proposed here, would properly fit within the concept of a dumbbell, so far as describing plat plans are concerned?
“A. In the narrow context of a plat plan, I would have to say that the Turn-Style unit would fit into a dumbbell concept.
“Q. And in a broader sense, how would you regard possible construction of a Turn-Style store such as proposed here in particularly Rogers Plaza?
“A. I have to, if I may take a moment to discuss the function of a regional shopping center, and then go into the two key tenants and how they represent or do not represent appropriate tenants for a regional shopping center. In the concept of a regional shopping center, there are major tenants who hopefully generate the majority of the traffic in that shopping center, traffic from which smaller tenants, either in a strip or a mall, by the creation of that traffic, are able to generate a certain specific volume simply because people will want to cross-shop, using the terminology of the shopping center industry; that they would shop from one or the other of the major tenants and also shop the minor or mall tenants. The question with regard to the amount of cross-shopping generated is the key issue, because this is what the smaller tenants pay for when they pay rent, they pay for that traffic which is generated.
“Now, a traditional department store, one which sells more fashion merchandise, more fashion apparel merchandise provides a shopping opportunity for the customer.
“Q. Would you be able to indicate here in Grand Rapids some stores that would fit that particular category?
“A. Yes. Of course, Wurzburg’s, Herpolsheimer’s, Steketee’s, would be, I think, the three key ones that I would recommend as representing the image of the traditional department store.
“Q. Fine. Please go ahead.
“A. The mail order department stores, because they are less oriented to apparel and fashion shopping — and by mail order department stores I am talking about Sears, Penney’s, and Montgomery Ward— create something less of a desirable cross-shopping opportunity. Of course, the woman in the shopping center doesn’t tend to go from store to store, let’s say looking for a dress and therefore generate the mall traffic.
“Finally, the third type of store, whether we want to call it a discount department store or family center kind of department store, would in my estimation draw the least amount of cross-traffic because they do not deal in fashion merchandise. The mall tenant does not get the benefit of that traffic because the customer goes for the purposes of convenience into a family center and does not shop around.
“Q. And do you regard Turn-Style as being within that last category of discount or family center stores?
“A. Yes.”
This land adjacent to the plaza but not a part thereof was purchased by plaintiffs to supply parking to take the place of the extra parking area taken up by the Turn-Style building. The evidence indicated this land was undesirable when compared to the parking area of the plaza.
Parking space to building space ratio of 2.7 to 1.
The Fair v. Evergreen Park Shopping Plaza (1954), 4 Ill App 2d 454 (124 NE2d 649). | [
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Holbrook, J.
The auto accident which is the subject matter of this suit occurred on December 28, 1966. On February 23, 1968, plaintiffs brought suit against Fearer Leasing, Inc., and the other principal defendants, i.e., Packaging Corporation of America and John C. Paramenter, in the Wayne County Circuit Court, alleging that plaintiffs were injured in an auto accident when a vehicle owned by the corporate defendants and driven by driver Paramenter rear-ended plaintiffs’ vehicle. An answer was filed on behalf of all defendants by their attorney. On May 31, 1968, a third-party complaint and summons was issued against Bussell Certo as third-party defendant, by the defendants, acting as third-party plaintiffs.
The third-party complaint and summons were issued pursuant to the provisions of GrCB 1963, 204, in which it was claimed that Certo would be a joint tortfeasor contributing to or causing the injuries claimed by plaintiffs. On September 20, 1968, the third-party summons and complaint were served on Bussell Certo, and on November 15,1968, an answer to the third-party complaint was filed on behalf of Bussell Certo by his attorney. Subsequent thereto, numerous correspondence, including exchange of pleadings, were submitted between various counsel.
Third-party defendant Bussell Certo filed a motion for separate trials on January 12, 1970, as between the claims of the plaintiffs against the defendants, and the third-party plaintiffs (defendants) against Russell Certo as third-party defendant. In paragraph 5 of that motion, it was specifically alleged that the statute of limitations had expired. An answer to Certo’s motion was filed on behalf of the principal defendants, third-party plaintiffs, by their attorney. No answer or response was filed on behalf of the principal plaintiffs. The motion was heard by the Honorable Nathan J. Kaufman of the Wayne County Circuit Court on January 30, 1970, and was denied. On April 13, 1970, following a hearing for presentment of an order, the court entered the order denying separate trials.
On April 27, 1970, at the pretrial hearing before the Honorable Theodore R. Bohn, the plaintiffs for the first time requested an amendment to the pleadings wherein Russell Certo would be added as a principal defendant. Objection was made to the form, time, and manner of the motion. The court granted the motion by including in the pretrial statement its decision that the plaintiffs may file a complaint against Russell Certo as a principal defendant, with an order allowing plaintiffs to file an amended complaint against Russell Certo, as a principal defendant, entered May 14, 1970.
Leave to appeal the trial court ruling was granted by this Court on July 21, 1970.
The trial court, in its decision allowing the addition of the third-party defendant as a principal defendant after the running of the statute of limitations, relied on the case of Bensinger v. Reid (1969), 17 Mich App 219. That case stands for the general proposition that pleadings may be amended to add a party defendant after the statute of limitations has run, if the party added knows of the litigation and is not prejudiced by the amendment. That case involved the “misnomer problem”, e.g., serving the right defendant in his wrong capacity; see also Wells v. The Detroit News, Inc. (1960), 360 Mich 634.
It appears, however, that there was no misnomer problem in the instant case, and therefore Bensinger v. Reid, supra, is not applicable. We next consider whether the amendment to name the third-party defendant as a principal defendant by plaintiffs may relate back to the date of the original pleadings under the provisions of GCR 1963, 118.4.
The following committee notes and authors’ comments appear in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 409, 414, 415:
“Presently there is much Michigan case authority to the effect that a party cannot set up a new cause of action barred by the statute of limitations at time of amendment. This limitation on amendment lends itself to technical legalistic interpretations as to what is a cause of action, yet a court willing to grant permission to amend is apt to broaden the meaning of a cause in order to do it. The Federal provision places the matter on the basis of certainty and fairness. A pleader under this rule will be allowed to amend if the amendment relates back to the conduct, transaction, or occurrence originally set forth. Thus the adverse party is not prejudiced, since he has been given notice of the matter originally pleaded. Once made a party to an action arising from a particular fact situation, he is aware that the original pleadings are subject to amend ment, and he ought not be permitted to force his opponent into a legally different statement of the facts for the sole purpose of barring the claim. And too, the statute of limitations is satisfied, since a new set of facts cannot be added by amendment if the statute has already run.
“Rule 118 imposes no subject matter restrictions on amendments to pleadings. Therefore, amendments by leave of court, as well as amendments without leave, may introduce new parties, new matter, or new causes of action or defenses, unless precluded by the rules of joinder or the statute of limitations.
“The stage'at which leave to amend is requested, according to the circumstances of each case, is nevertheless a pertinent factor affecting the court’s discretion. It will obviously become increasingly difficult to justify leave to amend at each later stage of a proceeding, especially if the circumstances indicate that the same action could have been taken at any earlier stage.”
Since GrCR 1963, 118.4 is derived from F R Civ P 15(c), it is helpful to examine the decisions interpreting the latter with respect to the instant problem. In the case of Hankinson v. Pennsylvania Railroad Company (ED Pa, 1958), 160 F Supp 709, the facts were nearly identical to the instant case, as follows: plaintiff commenced an action against the Pennsylvania Railroad to recover under the Federal Employers’ Liability Act and the railroad then joined the United States as a third-party defendant before the statute of limitations had run on the claim against the United States. Hankinson then sought, after the statute of limitations had run, to amend his original complaint to name the United States, for the first time, as an original defendant. The Federal district court held that the complaint could not be amended to include the United States as a principal defendant since the statute of limitations had expired. In Hankinson, supra, on p 710, it is stated in part:
“The plaintiff next insists that, because the defendant railroad impleaded the government as a third-party defendant within two years from the time plaintiff’s cause of action accrued, the statute of limitations was tolled. This is an ingenious but untenable contention. Carlisle v. Monongahela R. Co. (WD Pa, 1954), 16 FRD 426; Horan v. Pope & Talbot, Inc. (ED Pa, 1953), 119 F Supp 711; Lommer v. Scranton-Spring Brook Water Service Co. (MD Pa, 1943), 3 FRD 27. The amended complaint began the plaintiff’s action on Ms claim against the United States too late. It is of no avail to the plaintiff that the railroad began its action on its claim against the government in time.”
In Storey v. Garrett Corporation (CD Cal, 1967), 43 FED 301, it was decreed that the “relation back” doctrine does not enable a plaintiff to join entirely new parties as defendants after the statute of limitations has run, and the 1966 amendment liberalizing the Federal Eule (which has not been incorporated in GCE 1963, 118.4) has not changed such a basic premise; see also 1A Barron & Holtzoff, Federal Practice and Procedure, § 448, pp 768-770 and supplement.
There is, however, a Federal court decision holding to the contrary and allowing the amendment of the complaint by plaintiff adding a new defendant. Meredith v. United Air Lines (SD Cal, 1966), 41 FRD 34. In Meredith a passenger was injured when the pilot of a commercial airplane was required to veer off abruptly to avoid a military-type airplane. Suit was commenced by the passenger and her hus band against the commercial airline and the United States for her injuries, medical expenses, and loss of services before this action was barred by the one-year California statute of limitations. Subsequently, the passenger and her husband discovered that the military-type airplane may have been operated by a manufacturer’s test pilot and they filed an amended complaint more than one year after the accident seeking recovery from the manufacturer', which had knowledge of the action when it was filed or soon after it was filed. The manufacturer made a motion to dismiss the amended complaint as to it under the California one-year statute of limitations. The district court held that the amended complaint related back to the date of filing of the original complaint under the Federal Rule of Civil Procedure 15(c) as the Rule was amended in 1966. The court stated on p 38 in part as follows:
“Civil Rule 15(c) as amended by the recent amendments which became effective July 1, 1966, reads as follows:
“ ‘Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates bach if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.’ ”
The italicized portion was added by the 1966 amendments.
“In determining whether the instant case meets the requirements of Section 15(c) as amended, several inquiries must be made. First, does the claim asserted against Lockheed in the amended pleading arise ‘out of the conduct, transaction, or occurrence set forth * * * in the original pleading * * * >¶ Obviously it does.
“Second, has Lockheed, the party brought in by the amendment, ‘received such notice of the institution of the action that [it] will not be prejudiced in maintaining [its] defense on the merits’?
“And third, did Lockheed know or should it have known ‘that, but for a mistake concerning the identity of the proper party, the action would have been brought against [it]’? Both of these requirements also seem amply satisfied by the facts of the instant case.”
GCR 1963, 118.4 does not contain the 1966 amendment to the Federal Rule, and even if it did, it would not enable the plaintiffs to amend so as to make the third-party defendant a principal defendant in this case. Plaintiffs herein knew from the beginning of the third-party defendant and his identity and the fact of his being a possible tortfeasor responsible for the accident.
The plaintiffs assert that under our statutes and court rules and the facts present in this case, the amendment naming the third-party defendant as a principal defendant was permissible. In order to properly consider this claim of the plaintiffs, it is necessary to consider the theory upon which they base their position. They first rely on GCR 1963, 204.1(3) which provides:
“The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in Rule 111 and his counterclaims and cross-claims as provided in Rule 203. ”
Plaintiffs assert that once the third-party defendant has been brought into the case, jurisdiction of the court is acquired over him; further, that the plaintiffs then may assert any claim against him arising out of the transaction or occurrence that is the subject matter of plaintiffs’ claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in GCR 1963, 111, and his counterclaims and cross-claims as provided in GCR 1963, 203. The theory thus far appears to be that the third-party defendant’s having been made such by the principal defendants confers jurisdiction on the Court over the third-party defendant. It must be noted, however, that GCR 1963, 204.1 permits the defendants in this case to make the third-party defendant a party to the action if he is or may hereafter be liable to such third-party plaintiff by right of contribution or otherwise for all or part of the plaintiffs’ claim against him. We turn to 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 508, and read from the authors’ comments as to GCR 1963, 204, wherein it is stated:
“The rule makes it clear that the third-party defendant’s liability must run to the primary defendant, not to the primary plaintiff. That is, the defendant cannot implead a third party in order to contend that it is the third party instead of the defendant who is liable to the plaintiff.” (Emphasis supplied.)
The statute, MCLA § 600.2925 (Stat Ann 1962 Rev § 27A.2925), which provides for contribution, specifically provides that joint tortfeasors, not severally-liable tortfeasors may have contribution. In this regard, our Supreme Court has ruled in Husted v. Consumers Power Company (1965), 376 Mich 41, that GCR 1963, 204, providing that a defendant may bring in a third-party defendant, does not create substantive rights in the principal defendant, as the substantive basis for defendant’s claims must be found elsewhere before the rule becomes operative. MCLA § 600.2925 (Stat Ann 1962 Rev § 27A.2925). Now it is true that the present rule, GCR 1963, 204.1(3), provides that the plaintiffs may, after the granting of the third-party motion, then assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of plaintiffs’ claim against the principal defendants. This the plaintiffs could have accomplished at any time before the running of the statute of limitations.
The plaintiffs further claim that the statute of limitations was tolled by reason of the tolling provisions in the statute, MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856), which reads as follows:
“The statutes of limitations are tolled when # # #
“(2) jurisdiction over the defendant is otherwise acquired * * * .”
The tolling statute should be read with reference to the statute of limitations itself, MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805), which reads in part as follows :
“No person may bring or maintain any action to recover damages for injuries to persons or property unless, after tbe claim first accrued to bimself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
“(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”
The plaintiffs did not commence their action against the third-party defendant within the three-year period.
It appears that the third-party defendant is subject to the jurisdiction of the court by reason of the grant of the third-party motion but for the limited purpose of compelling contribution to principal defendants. Does this fact toll the statute of limitations? If it does, then plaintiffs would be entitled to amend in conformance with the court rule and name the third-party defendant as a principal defendant. The difficulty in this regard is the fact that the plaintiffs in the first instance were not required to name the third-party defendant as a principal defendant. Nor were they required under the court rule to name the third-party defendant as a principal defendant. It was -still a choice for the plaintiffs as to whether or not they would seek to make the third-party defendant a principal defendant. Donlin v. Detroit United Railway (1917), 198 Mich 327. Also see 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 551. The jurisdiction that the court obtained over the third-party defendant by the grant of the third-party plaintiffs’ motion was limited to giving relief in favor of the third-party plaintiffs for contribution because the defendants (third-party plaintiffs) claimed that the third-party defendant was a joint tortfeasor. It seems evident that jurisdiction was not obtained by the plaintiffs over the third-party defendant, by the grant of the motion under GrCR 1963, 204. Of course, plaintiffs could have exercised their right under the rule to add the third-party defendant as a principal defendant. This they did not do prior to the running of the statute of limitations. For further light, we turn to 54 CJS, Limitations of Actions, § 276, pp 313-315, where we find:
“The general rule is well settled that, where new parties defendant are brought in by amendment, the statute of limitations continues to run in their favor until they are thus made parties. The suit cannot be considered as having been commenced against them until they are made parties.
“Additional defendant brought in by original defendant. Even though the statute of limitations bars a direct recovery by plaintiff from a person not originally made a defendant, the original defendant may bring in such person as an additional defendant on an allegation of joint liability or liability oyer, and for the purpose of contribution or indemnity, but not on an allegation or averment that the new defendant is solely liable or if the effect of the joinder is to give plaintiff a right of action against the party joined.”
Mere knowledg*e of the existence of a potential claim or action does not toll the statute of limitations or estop one from asserting its provisions. Mason v. Letts (1968), 14 Mich App 330. We rule that the statute of limitations was not tolled as to the principal plaintiffs by reason of the defendants’ motion to make the third-party defendant a party to the action for the purpose of contribution.
Plaintiffs further rely on the provisions of GCB, 1963, 118.4 which provides for relation hack of amendments:
“Except for the purpose of demanding a trial by jury under subrule 508.2, the amendment relates back to the date of the original pleading whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.”
This provision has been effective in adding parties defendant in so called misnomer cases. It has not yet been applied in cases such as the instant case.
We rule with the majority of Federal authority that plaintiffs cannot amend the pleadings after the running of the statute of limitations to make a third-party defendant a principal defendant. Plaintiffs knew about the third-party defendant Bussell Certo’s relationship to the accident in question the day that it happened. They also knew that on May 31, 1968, Bussell Certo was made a third-party defendant by the principal defendants; that service of the third-party complaint and summons was had on Bussell Certo on September 20, 1968. Plaintiffs had the right and privilege all during the period of the running of the statute of limitations up through December 28, 1969, to name Bussell Certo as a principal defendant, but did not do so. No one could require the plaintiffs to name Bussell Certo as a principal defendant, and this Court concludes that plaintiffs, by their failure to act, elected to forego their right to name him as a principal defendant. The trial court’s granting of the motion naming Bussell Certo as a principal defendant is set aside.
Reversed and remanded for further proceedings. No costs, the construction of court rules and statutes being involved.
Bronson, J., concurred.
“A Relation Back of Amendments. Except for the purpose of demanding a trial by jury under subrule 508.2, the amendment relates back to the date of the original pleading whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.”
“Joint tort-feasors who are summoned in as third party defendants pursuant to court rule may likewise be liable for contribution.” | [
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Fitzgerald, P. J.
Defendant appeals by right from a jury conviction and life sentence on a charge of murder in the first degree.
On August 16, 1967, a package was mailed to the residence of Mrs. Paul Puyear in the city of Mar shall, Michigan. Dne to standing instructions, the package was rerouted and delivered to the Puyears’ business address, a restaurant called the Tasty Cafe.
Ñola Puyear attempted to open the package and it exploded, killing her instantly and doing substantial damage to the Tasty Cafe. An investigation at the scene turned up the wrapper of the package with the address written in red on it, pieces of masking tape, and metal fragments from a “Fiske” battery. Also found at the scene was a pill bottle and its contents and wrapper. It appears that this pill bottle, with pills containing sodium hydroxide (lye), had been mailed to the deceased some months earlier. An examination of the reassembled bomb wrapper indicated that the package had been mailed in Marshall.
Subsequent investigation led to the arrest of defendant; a search of his home resulted in the seizure of masking tape, a “Fiske” battery, and a red pencil similar to that-used to address the package. From a comparison of the handwriting of defendant and the handwriting on the package wrapper and the pill wrapper, there was expert testimony that the writing was done by one and the same person. There was also testimony to the effect that the defendant was desirous of buying the Tasty Cafe from the Puyears.
Chism testified, while denying that he sent the bomb or the pills, that he purchased dynamite in 1966.
Helpfully, the Court has been assisted by excellent briefs by both defendant and the people, setting forth the issues raised and furnishing cogent arguments for both sides. The issues will be considered seriatim.
I. Was appellant denied his constitutional right to a speedy trial?
Mainstay of defendant’s appeal is that the delay from his arrest on October 11, 1967, to his trial on January 20-30, 1970, was such a denial of his constitutional right to a speedy trial that it requires the reversal of his conviction and his discharge. He argues that the fact that the delay was caused by his appeal of the lower court’s denial of his petition for counsel does not excuse the delay, mainly because' the state cannot require a defendant to sacrifice one constitutional right (speedy trial) to enforce another (assistance of counsel). Defendant also argues that his lack of a formal demand for trial does not cure the error because he was without counsel for most of that time.
In opposition, the people argue that it was defendant who caused the delay because he invoked the appellate process prior to trial. It is also pointed out that defendant never made the required formal motion for trial. 9
Defendant was arrested on October 11, 1967, according to the record. On October 18, 1967, defendant petitioned for the appointment of counsel as an indigent. On October 18 and 27,1967, and December 26, 1967, the court heard testimony relative to his financial status. Prior to this, the court appointed counsel for the preliminary examination which was held on November 16, 1967. On January 9, 1968, the lower court entered its finding denying appointed counsel for the trial. A formal order to such effect was filed on January 12, 1968, and counsel was appointed for the appealing of this order on January 18, 1968. On February 10,1968, the appointed counsel filed an application for leave to appeal with this Court.
Thereafter, on March 29, 1968, an order was entered granting leave to appeal, granting leave to intervene amicus curiae to the Prosecuting Attorneys Association of Michigan, and shortening the time for the filing of briefs to one-half the regular period.
On July 1, 1968, defendant filed a motion and stipulation to advance the hearing date which was denied by order on July 10, 1968. Oral argument before this Court was had on November 13, 1968, and an opinion was entered on April 23,1969, reversing the lower court and granting appointed counsel. See People v. Chism (1969), 17 Mich App 196. On April 25, 1969, the lower court appointed counsel for defendant.
While this appeal was in progress, defendant filed pro se a motion to dismiss for denial of a speedy trial on June 20, 1968. On July 24, 1968, the prosecutor filed an answer to this motion which was served on defendant on August 19,1968. A hearing was not held on this motion on April 10, 1969, and the dismissal motion was denied by order entered April 21, 1969.
In April, the lower court informed defendant that trial could be held in either May or August of 1969, but defendant wished to make some pretrial motions first. On June 19, 1969, this time through counsel, defendant made a motion to quash for a denial of speedy trial which was denied by order on August 18, 1969.
On September 19, 1969, defendant made a motion for immediate trial and the case was set for trial in October, 1969. A motion for a continuance was filed by defendant after additional witnesses, opposed by defendant, were indorsed. Finally, the case was tried January 20-30, 1970.
Thus, the record shows that there was a 27-month interval between arrest and trial (October 1967 to January 1970), and of this time 14 months were taken up in appeals to this Court (February 1968 to April 1969).
Defendant is correct in his contention that a defendant cannot be compelled to sacrifice one constitutional right to enforce another. Simmons v. United States (1968), 390 US 377 (88 S Ct 967, 19 L Ed 2d 1247); People v. Marsh (1968), 14 Mich App 518. However, neither of the above cases dealt with the instant fact situation. Indeed, it appears that this situation (loss of speedy trial due to invoking the appellate process) is one of first impression in Michigan, if not the country.
There is no doubt that the constitutional right to a speedy trial is guaranteed to citizens in state prosecutions through the Fourteenth Amendment to the United States Constitution. Klopfer v. North Carolina (1967), 386 US 213 (87 S Ct 988, 18 L Ed 2d 1); Duncan v. Louisiana (1968), 391 US 145 (88 S Ct 1444, 20 L Ed 2d 491). The right to a speedy trial is also guaranteed to Michigan citizens by MCLA § 768.1 (Stat Ann 1954 Rev § 28.1024).
However, the flaw in defendant’s position, and which is dispositive of the issue, is the fact that the delay was caused by his repeated recourse to the appellate process.
It appears that the invoking of appellate machinery serves to modify the speedy trial right. In People v. Den Uyl (1948), 320 Mich 477, the Court, in granting a writ of mandamus requiring the conclusion, within 60 days, of a preliminary examination which had been continued eight times, said:
“One of the circumstances which will constitute good cause for delay, again within reasonable limits of time, is the taking of an appeal, whether by the State or another party. See People v. Grisea, 63 Cal 345, and the annotation in 56 LRA 513, 519.” 320 Mich 489. (Emphasis supplied.)
The Court in Den TJyl, supra, went on to say:
“It is sometimes said that a speedy trial means a trial regulated by fixed rules of law, and that delay created by operation of those rules is not included in the meaning of the constitutional provision.” 320 Mich at 490. (Emphasis supplied.)
Thus, Den TJyl, supra, points out that the right to a speedy trial may be delayed if one of the parties invokes the appellate process, or if the delay is caused by fixed rules of law. Both of those criteria fit the facts here presented.
In a recent United States Supreme Court case, uncited by both parties, it was indicated that the initiation of appellate proceedings is good cause for resultant delay. In Harrison v. United States (1968), 392 US 219 (88 S Ct 2008, 20 L Ed 2d 1047), the Court reversed a conviction upon retrial because of the use of inadmissible testimony. It appears that one of the appellant’s other contentions in that case was that he was denied a speedy trial because the original indictment was eight years old (see 20 L Ed 2d at 1698). The Court, in answering this contention in a footnote, said:
“Virtually all of the delays of which the petitioner complains occurred in the course of appellate proceedings and resulted either from the action of a petitioner or from the need to assume careful review of an unusually complex case.” fn 4, 392 US at 221 (88 S Ct at 2009, 2010, 20 L Ed 2d at 1051).
The United States Supreme Court also said that the speedy trial contention had been properly re jected by the Court of Appeals, District of Columbia. In that case, Harrison v. United States (1967), 128 App DC 245, 248, 249 (387 F2d 203), the Court said:
“The contention that appellants’ Sixth Amendment right to a speedy trial has not been respected is predicated broadly upon the six-year lapse between the homicide and the third trial, but for this purpose we cannot treat litigation spans in a vacuum. ‘There is no touchstone of time which sets a fixed maximum period that automatically requires application of the Sixth Amendment and dismissal of the indictment.’ Rather, ‘[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.’ So in determining whether the delay complained of assumes constitutional proportions, we examine the circumstances closely to ascertain whether it was ‘arbitrary, purposeful, oppressive or vexatious.’
“The time necessarily consumed in unraveling complex issues whose ultimate resolution vindicates the rights of the accused can hardly be said to constitute purposeful or oppressive delay. We are accustomed to careful study of the questions presented to us, particularly where human life or liberty is at stake, and surely this case has tolerated no deviation. ‘[T]he essential ingredient is orderly expedition and not mere speed’; indeed, ‘[a] requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.’ One has but to examine the comprehensive opinions the second appeal brought forth to appreciate the court’s task and foresee the risk that unwarranted haste might have worked to appellants’ disadvantage. And there is no hint that any subsequent phase of this case radiates any constitutional implication.”
The United States Supreme Court then, by its language and its approval of the language of the District of Columbia Court of Appeals, though dealing with a retrial rather than a first trial, says that the appellate process, when invoked by the accused, cannot then be used by the accused as a contention for a denial of speedy trial. It appears that this is especially so when the appeal process results, as it did in the instant case, in the vindication of the claim of the accused.
It is the general rule in Michigan that a denial of speedy trial issue cannot be raised unless a formal, record demand for trial has been made. People v. Miklovich (1965), 375 Mich 536; People v. Duncan (1964), 373 Mich 650; People v. Frazier (1969), 16 Mich App 38. Although defendant made no formal motion for a speedy trial, he did, on June 20, 1968, make a motion for dismissal on the grounds of denial of speedy trial. It should be noted that at this time defendant was still without counsel and was thus acting in propria persona. It is difficult to maintain the position that this in propria persona motion by defendant was not sufficient to meet the demand requirement, especially in light of the fact that People v. Duncan, supra, and Miklovich, supra, were decided before Duncan v. Louisiana, supra, and Klopfer v. North Carolina, supra (contra, see People v. Frazier, supra, p 42).
MCLA § 768.1 (Stat Ann 1954 Rev § 28.1024) provides :
“The people of this state and persons charged with crime are entitled to and shall have a speedy trial and determination of all prosecutions and it is hereby made the duty of all public officers having duties to perform in any criminal case, to bring such case to a final determination without delay except as may be necessary to secure to the accused a fair and impartial trial.” (Emphasis supplied.)
In the instant case, the complained-of delay was “necessary to secure to the accused a fair and impartial trial”, i.e., to enable him to have the assistance of counsel. Thus, the delay in this case would very easily come under the exception in the statute.
The 27-month delay in the case at bar is lamentable. No one involved in the administration of criminal justice desires or advocates this length of delay, especially those concerned with the appellate process. However, it can hardly be said in the instant case that the delay was “arbitrary, purposeful, oppressive, or vexatious”, Harrison, supra, especially in light of the fact that this Court shortened the time for filing of briefs to one-half the regular time (order of March 29, 1968). The time involved appears not to have exceeded justifiable bounds nor to have harmed defendant’s cause.
II. Was it error for the lower court to admit into evidence certain items that tended to indicate appellant had made a prior attempt on the life of the deceased?
Defendant contends that it was reversible error for the trial court to admit into evidence a pill bottle and wrapper that had been sent to the deceased sometime before the bomb. The bottle contained pills made of lye. The handwriting on the label was identified as being that of defendant. The label provided “Transvex tablets for release of nervous tension, restlessness, and irritability”. It could be said that the hope of the sender was that Mrs. Puyear would take the pills and thus be poisoned.
Defendant contends that it was error to admit this under the provisions of MCLA § 768.27 (Stat Ann 1954 Rev § 28.1050), because there was no question of motive or intent involved. Also, it is urged that the judge’s failure to give limiting instructions to the jury concerning this evidence is reversible error, even though the judge was not requested to do so.
The people argue that the evidence was clearly admissible under the statute, contending that the defendant cannot preclude the prosecution from using the statute merely by admitting that motive or intent was not at issue. The people further contend that because defendant took the stand and denied his guilt all elements of the crime were in issue and therefore the evidence could be introduced under the statute to show intent, motive, scheme, and system.
The trial court admitted the evidence for proof of intent under the statute. The court reasoned, and quite logically so, that to allow a defendant to admit intent on the part of some party (not defendant) and thus be able to bar the evidence would make the statute rather nonsensical.
MCLA §768.27 (Stat Ann 1954 Rev § 28.1050) provides:
“In any criminal ease where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
In interpreting this statute, this Court said in People v. Shaw (1968), 9 Mich App 558:
“Evidence of prior acts of a criminal defendant may be relevant to a showing of motive for commission of the crime charged. The burden is upon the prosecution to demonstrate to the trial judge the relevance of the proffered evidence. People v. Askar (1967), 8 Mich App 95. Despite its relevancy it should be excluded where probative value is outweighed by attendant prejudice to the defendant. The assessment of the relative weight of these two factors is within the discretion of the court.
“Where intent or motive is material and relevant, the mere fact that the prior act is itself a crime does not render the evidence inadmissible. People v. Allen (1958), 351 Mich 535. Proof of motive is highly relevant in a case such as this where there are no eyewitnesses and the prosecution’s case is necessarily a circumstantial one. Defendant’s interests must be weighed heavily, however, where the motive is evidenced by criminal acts. The problem is most acute and the inflammatory tendency of such evidence most pronounced where the act is an alleged rape of decedent’s wife by defendant. Such is the case here.” 9 Mich App 566.
Additionally, although other acts may be introduced to show motive, intent, or plan, this statute cannot be used to introduce evidence that merely shows disposition to do a criminal act.
In People v. Johnson (1968), 13 Mich App 69, the defendant was convicted of murdering one of his fellow inmates in Jackson Prison. The prosecutor at trial introduced evidence of prior arguments, fights, and disturbances that defendant had been involved in. This Court said in reversing the case:
“The prosecutor’s explanation before the trial court that such evidence was offered to show ‘disposition toward violations’ is equally untenable. In a trial for a criminal offense, evidence of other distinct offenses is generally inadmissible, unless tending to show ‘motive, intent, the absence of, mistake or accident,’ or, in sexual offenses, to show ‘opportunity, disposition of the parties, and intimate relations tending to break down self respect.’ People v. Williams (1965), 2 Mich App 91, 94. These exceptions are not applicable in a homicide case where the evidence of unrelated and dissimilar prior incidents is offered solely to prove defendant was more likely to have committed, or disposed toward the commission of, that offense for which he stands trial.
“Evidence of unrelated and collateral matters ‘raises false issues and is likely to lead the jury to try the accused of what is not in the information.’ People v. Pinkerton (1889), 79 Mich 110, 113. To compel defendant to answer such charges is to bring him to trial on one charge and ask him to acquit himself on another. See People v. Wright (1940), 294 Mich 20. Such conduct by the prosecutor, in this case, created a highly prejudicial atmosphere for the defendant. Prosecutor’s arguments before the trial and before this Court justifying admission of the evidence are untenable.” 13 Mich App 72.
Other cases have held that evidence of previous fights is not admissible under the statute where, unlike here, the charge is manslaughter and the defendant claims self defense. People v. Matthews (1969), 17 Mich App 48; People v. Wright (1940), 294 Mich 20.
In the instant case, the contested evidence was offered to show the design, plan, motive, intent, etc., of the defendant on a charge of first-degree murder. It would seem to be reasonable under the statute to show, by previous acts, that defendant intended or planned to kill the deceased by sending some form of harmful article to her through the mail.
Defendant argues that because intent was not in issue (the person who sent the package obviously intended to kill the deceased) the prosecutor should not be permitted to offer proofs under the statute to show intent. This argument has some defects. First, the fact that some of the elements are admitted does not preclude the prosecutor from introducing proofs as to those elements. People v. Neaton (1940), 294 Mich 134. Second, the intent in issue was the intent of the defendant, and he obviously did not admit that he had the intent to send the bomb. As the trial judge so succinctly pointed out, to permit the defendant to prohibit the people from introducing proofs as to intent merely by the defendant admitting that there was intent (but not his) would defeat the purpose of the statute.
It appears, then, that this issue really comes down to whether or not the prior attempt to kill the deceased showed a common plan, scheme, system, or intent or motive. There can be little argument but that poison pills in the mail has some rélation to a bomb in the mail. Admission was not reversible error.
Defendant further argues that even if the evidence was properly admitted, it was reversible error for the lower court to fail to give specific instructions to the jury concerning the evidence. It does not appear that the defendant requested these instructions, and he also did not object to the instructions as given. Nevertheless, defendant argues that it was the duty of the trial judge to give the instructions even in the absence of a request, relying on People v. Askar (1967), 8 Mich App 95.
Tn Askar, supra, the defendant was charged with sodomy, not murder. This Court held that the statute was not applicable to sodomy prosecutions because motive, intent, scheme, or plan is not involved. Thus, that case did not really deal with the statute. The prior acts in Askar, supra, were admitted not under the statute but under the common-law exception which permits prior offenses to show opportunity, disposition of the parties, and intimate relations tending to break down self-respect in sexual offenses. It was for evidence of prior acts under the common-law rule that this Court required limiting instructions, even if not requested.
Additionally, recent cases in this Court have held that the failure to give unrequested limiting instructions concerning evidence admitted under the statute is not reversible error. People v. Anderson (1968), 13 Mich App 247; People v. Stevens (1970), 25 Mich App 181; People v. Albert White (1970), 27 Mich App 432.
III. Was the seizure of evidence from appellant’s home the result of an unreasonable search and seizure¶
Defendant argues that the consent search of his home was unlawful because, prior to the search, he was not warned of (1) his right to refuse access without a warrant and (2) the fact that a consent search is broader than a warrant search.
The prosecution states that the defendant was adequately warned of his rights, and that he intelligently, knowingly, and voluntarily waived his rights by signing a consent in the following form:
“I, Enoch D. Chism, having been informed of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant, and of my right to refuse to consent to such a search, hereby authorized M. L. Myers, Post Office Inspector, and Leroy Steinhacher, of the Mich State Police Dept, to conduct a complete search of my residence located at 15969 C Drive North & the curtilage & 1964 Ford Fairlane & 1965 Pontiac. The above named are authorized by me to take from my residence any letters, papers, materials or other property which they may desire.
“This written permission is being given by me to the above named voluntarily and without threats or promises of any kind.”
Defendant made a pretrial motion to suppress the articles seized in the search (battery, masking tape and red pencil). At the hearing on the motion, it was established that the defendant was warned of his rights that anything found would be used against him as evidence, that defendant signed the consent without any deceit or trickery on the part of the investigators, and that he had been informed of his right to refuse to sign the consent.
The trial judge found that the search was lawful and the evidence was thus admitted.
The general rule is that the prosecutor has the burden of showing that the consent for a search given by the accused was unequivocal, specific, and freely and intelligently given. It must be proven by clear and positive evidence. People v. Kaigler (1962), 368 Mich 281; People v. Shaw (1970), 383 Mich 69.
In the instant case, defendant signed a consent form that said he had been informed of his constitutional right not to have a search made without a warrant and of his right to refuse to consent to the search, requirements set forth in People v. Zeigler (1960), 358 Mich 355.
In addition, the transcripts of the suppression hearings do not seem to indicate that defendant denied that his consent was freely and intelligently given.
In People v. Shaw (1970), 383 Mich 69, the Court reversed a murder conviction and remanded for a new trial because evidence was admitted where the consent was not shown by clear and positive evidence. There, unlike here, there was no signed consent form and there was only the testimony of one officer, which resulted in some contradictions. Here, there appears to be no question as to the consent being freely given.
In People v. Kaigler (1962), 368 Mich 281, the Court reversed and ordered a new trial because of a coerced consent search. However, in that case, the Court felt it of utmost significance that the police stated that they would search the home whether or not they got the keys from the defendant. The Court felt this was coercive. In the instant case, the prosecution says that the police did not inform defendant that if he didn’t give his consent they would get a warrant and make the search anyway because this would be considered coercion, as in Kaigler, supra.
There is scant authority for defendant’s contention that the police have to warn him of the fact that a consent search is broader than a warrant search. Further, as to the contention that he could refuse access without a warrant, the consent form defendant signed stated that he had been informed that he had a right to refuse a search absent a warrant.
The consent was unequivocal and specific, freely and intelligently given, and this was shown by clear and positive evidence. No error resulted.
IV. Were the checks and notebooks seized by the officers in the second search a product of an unreasonable search and seizuref
After the initial consent search of the defendant’s home on October 11, 1967, the police returned to the house on October 13, 1967. At that time, they did not have a warrant. Defendant’s wife admitted them to the house and the police informed her that they wished to have defendant’s checkbook and notebook that they had seen during the previous search. Defendant’s wife went into another room and returned with the items. The police then left and the two articles were used for handwriting analysis and admitted as exhibits 38 and 39.
Defendant argues that these items should not have been admitted because they were the fruits of an illegal search and seizure. The search, he claims, was defective because (1) the original consent could not be used for a subsequent search and (2) defendant’s wife could not waive his right against unreasonable searches and seizures. The prosecution counters with the view that there was really no search, the officers merely went to the home and requested the articles. The prosecution contends that a wife can consent to the search of a place of which she is a joint user.
It is difficult to sustain the position that this in fact was not a search by the police officers. Police officers’ entering a home and requesting certain documents from the occupant can hardly be considered anything but a search. See Bumper v. North Carolina (1968), 391 US 543 (88 S Ct 1788, 20 L Ed 2d 797).
As to the question of the consent given for the earlier search, and whether or not such consent remains in effect for subsequent searches, there is little authority in Michigan. The United States Supreme Court has not yet definitively addressed this issue.
In People v. Nawrocki (1967), 6 Mich App 46, this Court permitted a second search of an automobile in the afternoon, after it had previously been searched in the morning, basing the decision upon the fact that the appellant there had said the police could search his car “at any time”. Additionally, there, unlike here, the automobile was parked in the police garage.
In People v. Flowers (1970), 23 Mich App 523, this Court held that a parent cannot waive by consent a minor’s right to an unreasonable search and seizure, even if the minor is living at home and is being supported by the parent. The Court felt that the father there, as apparently is the wife here, was a third party or an outsider when considering the crime charged. It is the charged party who has the right and can waive it, not an outside party.
Michigan cases have also held that an attorney cannot waive the search privilege for his client, People v. Kaigler (1962), 368 Mich 281; and that the defendant’s grandmother who owned the premises wherein defendant rented cannot waive the defendant’s search privilege, Peoples. Overall (1967), 7 Mich App 153.
The wife’s consent can be said to have neither added to nor detracted from the search. The legality of the search itself is the paramount concern. The consent originally executed by defendant is reproduced, supra.
Under the instant facts, and considering the traditional narrow interpretation given to consents obtained during custody, we decline to hold that the consent given by defendant for the search on October 11, 1967, was sufficient to render constitutional the second search on October 13, 1967.
We have not found, nor have we been directed to, any authority that establishes a consent as permission for the authorities to enter at will the premises in question at any time thereafter. When consent is given to search an area, it does not mean the constitutional protection against unreasonable searches and seizures has been waived forever.
Indeed, we think there is a difference between a continuing or subsequent search on the same day as in People v. Nawrocki (1967), 6 Mich App 46, cert den 389 US 942 (88 S Ct 304, 19 L Ed 2d 296), and one on a subsequent day. Thus, the checkbook and notebook seized in the second search were improperly seized and not admissible as evidence. Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933).
Notwithstanding the inadmissibility of the notebook and checkbook, the conviction does not fall. Every constitutional error is not necessarily harmful, the test being whether or not we believe the error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 US 18 (87 S Ct 824, 17 L Ed 2d 705).
The testimony of the handwriting expert clearly indicates that he used a number of other items in making the identification. In addition to the contested notebook and checkbook, the expert also used specimen writings of the defendant, the defendant’s boat registration form, and the defendant’s application for a driver’s license to make the comparison and identification. None of the latter are contested as evidence.
We, therefore, hold that the admission of the notebook and checkbook was harmless error beyond a reasonable doubt as required by Chapman, supra.
In closing, we note that theientire record of this cause has been exhaustively reviewed, both in this case and in the prior opinion of this Court. No reversible error is found and accordingly the cause is affirmed.
All concurred.
MOLA § 750.316 (Stat Ann 1954 Rev § 28.548).
Cert den 389 US 942 (88 S Ct 304, 19 L Ed 2d 296). | [
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McGregor, J.
This appeal is from the decision of the State Tax Commission, affirming the determination of assessment on certain of plaintiff’s personal property. Plaintiff is an importer of industrial garments, which it sells and distributes throughout the United States. Its principal warehouse is in Detroit, with branch locations in Alabama and Oregon. The garments, principally work shirts and pants, are manufactured in, and imported from, Puerto Rico, where the garments are compressed and packed into large, heavy-duty cardboard cases or cartons, each containing quantities ranging from 5 dozen pants to 10 or 12 dozen shirts. Each case is then sealed with heavy sealing tape and reinforced with heavy straps or steel bands. These cartons are packed and are then transported to plaintiff by an independent common carrier.
The carrier uses two types of vans or trailers of special construction, designed specifically for overseas shipment. On each of the vans, the wheels are either removable or retractable, permitting loading and unloading by dockside cranes, as well as the stacking of the vans inside the ships. Upon arrival at the port of entry, the vans are removed from the vessel, wheels are attached to those without wheels, the vans are attached to motor cabs or tractors, and are driven to the addressee terminal. The vans themselves are basically metal bodies, each 8 feet high, 8 feet wide, and 35 feet long. Approximately 500 cartons of shirts and pants can be placed in one of these vans.
Prior to 1968, cartons shipped in this manner were recognized by the defendant City of Detroit as being immune from taxation, under the US Constitution, art 1, § 10(2), which provides:
“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports # * * ”
In 1968, the City of Detroit first began to assess and tax the property contained in these cartons; the city contended that the van or trailer described above which was utilized by the common carrier should be considered “original packages” and that, upon arrival of the vehicle at plaintiff’s warehouse, the opening and unloading of the van or trailer should be considered a breaking of the “original package”. The result would be that the property had lost its essential character as an import and would no longer have its constitutional immunity from taxation.
This concept was sustained by the State Tax Commission and plaintiff appeals to this Court.
In the instant case, this Court is confronted with a question whether the property remained in its original package and was thus immune from taxation or whether plaintiff in removing the property from the vans or trailers in which it was shipped and delivered, has, within the meaning of the applicable law, so broken up the packages as to lose the constitutional immunity.
The reference to “original package” first appeared in Brown v. Maryland (1827), 25 US (12 Wheat) 419 (6 L Ed 678), and was used as an illustration or method for ascertaining whether an import had been so acted upon, altered, or commingled with a common mass of property within the state as to lose its distinctive character as an import. Our Court re viewed some of the leading cases interpreting US Const, art 1, § 10(2), in City of Detroit v. Kenwal (1968) , 14 Mich App 657, 659, leave to appeal denied March 20, 1969, 381 Mich 811, cert den, 396 US 833 (90 S Ct 87, 24 L Ed 2d 83); and summarized the applicable law:
“In Brown v. Maryland (1827), 25 US (12 Wheat) 419 (6 L Ed 678), the Supreme Court invalidated a state licensing tax and held that a state could not tax imports as long as the property remained in its original form or package. Low v. Austin (1872), 80 US (13 Wall) 29 (20 L Ed 517), expanded the principles of Brown v. Maryland to prohibit states from levying ad valorem taxes on goods which have not lost their character as imports. See also City of Detroit v. Lake Superior Paper Company (1918), 202 Mich 22. Subsequent to Brown v. Maryland, supra, it has become well established that imports lose their constitutional immunity when the importer (1) sells them or (2) ‘breaks up the packages’ or (3) puts them to the use for which they were imported. Youngstown Sheet and Tube Company v. Bowers (1959), 358 US 534 (79 S Ct 383, 3 L Ed 2d 490).”
In Kenwal, supra, it appears that the imported steel was in its original package, and that it was not being put to any use for which it was imported, and that Kenwal was the importer and, thus, entitled to the constitutional tax immunity.
The test in Youngstown, supra, was whether the imported goods had been so put to the use for which they were imported as to lose their character as imports, since such merchandise had entered into the plaintiff’s manufacturing process. See City of Detroit v. Klockner, Inc. (1970), 383 Mich 76, 79, 80; see also Knight Newspapers, Inc. v. City of Detroit (1969), 16 Mich 438, 441.
In the instant case, the merchandise did not lose its distinctive character as an import.
We find no merit in defendant’s contention that the plaintiff in removing the imported goods from the vans in which they were shipped and delivered, had so “broken np” the original packages as to destroy their constitutional immunity. The vans were the property of the carriers who had the right to remove and store the shipper’s cartons.
There is no essential difference between these vans and vehicles which are normally used in over-the-road transportation of property; the only slight difference being that they are modified to permit transportation of the entire van by ship. It can only be concluded that the vans and trailers are, in fact, vehicles, or at least instruments of transportation, and the mere use of a new technology in shipping does not destroy the tax immunity of the property shipped.
In Hooven & Allison Company v. Evatt (1945), 324 US 652, 663 (65 S Ct 870, 876, 89 L Ed 1252, 1262), the United States Supreme Court held:
“When the merchandise is brought from another country to this, the extent of its immunity from state taxation turns on the essential nature of the transaction, considered in the light of the constitutional purpose, and not on the formalities with which the importation is conducted or on the technical procedures by which it is effected.”
The use of the vans here did not go to the essential nature of the transaction, but to the formalities of transportation. To hold otherwise is to extend the scope of the laws by implication or forced construction, contrary to the established law in this jurisdic tion. Topps of Warren, Inc. v. City of Warren (1970), 27 Mich App 59.
The decision of the State Tax Commission is reversed. Costs to plaintiff.
All concurred.
“Original package” refers to the doctrine first enunciated in Brown v. Maryland (1827), 25 US (12 Wheat) 419 (6 L Ed 678), which is later discussed herein. | [
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Per Curiam.
Defendant, Budolph Coleman, was convicted by a jury verdict on February 26,1970, of uttering and publishing (MCLA § 750.249 [Stat Ann 1954 Rev § 28.446]) and was sentenced to 5 to 14 years in prison. Defendant appeals as of right, raising one issue.
Defendant asserts error in the trial court’s admission of rebuttal testimony submitted by the prosecutor. Because this rebuttal witness had not been indorsed on the information, defendant contends it was improper for him to testify. Defendant cites' People v. Sacharczyk (1969), 16 Mich App 710, in support of this contention of error. Sacharczyk, however, is wholly inapplicable, for it dealt with the calling of unindorsed res gestae witnesses. Such is not the case here.
Examination of the record indicates that the people were not obligated to call the witness as part of their main case. He was called for rebuttal, and properly so.
A similar contention was rejected in People v. Freeman (1969), 16 Mich App 63, 72:
“Defendant further alleges that the trial court erred in permitting a police officer who had not been indorsed on the information to testify as a rebuttal witness. The record shows that the prosecution had no intention of calling the witness until defendant took the stand. The witness’s testimony was merely for rebuttal and was not part of the people’s affirmative case. * * * The admission of the testimony of the previously unindorsed rebuttal witness did not result in a miscarriage of justice. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).”
No reversible error. Conviction of defendant is affirmed. | [
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Per Curiam.
From a grant of defendants’ motion for summary judgment in an action to determine title to land, plaintiff appeals.
Plaintiff successfully bid upon the land in question at a tax sale in May of 1968 and received a certificate of sale. Approximately one year later, plaintiff was issued a tax deed by the State of Michigan pursuant to MCLA § 211.72 (Stat Ann 1960 Rev § 7.117). Plaintiff then sought to perfect his title to the land by serving defendants Strong and McNeish with statutory notice of their right to redeem. MCLA § 211.141 (Stat Ann 1960 Rev § 7.199). Defendant Strong, who was in possession of the land by virtue of an unrecorded land contract, was personally served on July 23, 1969. Defendant McNeish, the vendor, was served by publication completed July 22, 1969. The return of service and proof of publication were filed with the Wayne County Clerk on October 17, 1969.
Plaintiff brought suit to quiet title on February 10, 1970. On April 7, 1970, defendant Strong tendered the amount necessary to redeem the property to the Wayne County Clerk. Defendants then moved for summary judgment on the ground that the land had been redeemed.
On appeal, plaintiff urges that the six-month redemption period under MCLA § 211.141 (Stat Ann 1960 Rev § 7.199) begins to run from the date of service and that defendant Strong’s right to redeem expired January 23, 1970.
Appellant’s position is contrary to the clear mandate of MCLA § 211.141, which allows persons with an interest in land to redeem, “at any time within 6 months after the filing of return of service or the filing of proof of publication of such notice, as hereinbefore provided.” (Emphasis supplied.) That the time for redemption begins to run only after the proof of service has been filed is the settled law of this state. Magoun v. Walker (1938), 286 Mich 686. Pendency of litigation has no effect on this period. Clothier v. Miller (1913), 173 Mich 530.
Since the proof of service on defendant Strong was not filed until October 17, 1969, her tender to the county clerk on April 7, 1970, was within the statutory period and constituted a valid redemption. Thus, the action of the trial court in granting summary judgment to the defendants was proper.
Affirmed. | [
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Holbrook, J.
The complaining witness was beaten and robbed by defendant and three others in the City of Detroit. Complainant, a resident of Windsor, was walking towards the bus stop to catch a return bus when four men crossed the street to approach him, and was grabbed by defendant. Defendant and the three others then forced him into an alley where they beat him into a state of unconsciousness. The owner of a nearby hotel heard complainant’s cries for help, grabbed a gun he kept in his desk, and ran to the scene of the crime. On the way he noticed three men emerging from the alley, and when he got to the scene, he found defendant still engaged in beating the complainant. He grabbed defendant by the back of the neck, forced him up against the wall and frisked him. At that time complainant came to and noticed that some money was missing. He had been unconscious at the time it was taken and did not know that the defendant had committed the robbery. During this search of defendant by the owner of the nearby hotel, no weapon or any of the stolen money was found on defendant’s person. The police were then called.
When the police arrived they found the defendant being held at gun point against the wall by the hotel manager, and at this point the complainant was still on the ground. The complainant then told the arresting officer that he had been beaten and robbed of some $7.
Defendant was charged with and convicted of the crime of unarmed robbery. MCLA § 750.530 (Stat Arm 1954 Eev § 28.798). The trial was without a jury, and the above events were testified to by complainant, the hotel manager, and the arresting officer. The only witness on defendant’s behalf was himself. The trial judge specifically stated that he disbelieved the defendant’s testimony as being inconsistent with that of the other witnesses and as being “highly unlikely”.
On appeal defendant asserts that there was insufficient evidence as a matter of law to sustain his conviction of unarmed robbery, because no one could testify that he himself had actually taken the money. He relies on People v. Gadson (1957), 348 Mich 307, but that case is distinguishable on its facts as the evidence there was much less compelling and was insufficient to prove that the robbery was accomplished by “stealing from the person of another”. The next case relied on is People v. Morrow (1970), 21 Mich App 603. The conviction there was reversed as based on insufficient evidence chiefly because there was no showing that defendant was a participant in an unlawful enterprise, nor did anything suggest the existence of any common plan to commit larceny. There was nothing from which an inference of larcenous intent might have been drawn. That is markedly different from the instant situation where it was apparent that the four men planned to, and did, heat and rob the complaining witness. This is the prototype of a “common plan”.
Affirmed.
All concurred. | [
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] |
J. H. Gillis, J.
Plaintiff, an employee of a construction subcontractor, was injured January 23, 1969, while working on the residential construction project of defendant. Plaintiff’s employer was hired by defendant to do rough carpentry work, i.e., the building and raising into position of assembled sections of homes and garages.
On the date in question, it was sunny and moderately warm; the snow on the ground was melting; the terrain was muddy and wet. Plaintiff’s foreman, a journeyman carpenter, called the work crew together to raise an assembled garage wall into place. Plaintiff was flanked on each side by another apprentice and a journeyman carpenter. The first effort to raise the assembled wall failed and it was lowered to the ground. On the second attempt, the wall fell and pinned plaintiff beneath. His injuries included fractured vertebrae and nerve damage.
Plaintiff, by his next friend, brought this action to recover for the alleged negligence of defendant. His complaint charged that defendant breached duties owed plaintiff, duties to provide him with a safe place to work and proper supervision. Defendant made a motion for summary judgment arguing that plaintiff had failed to state a cause of action upon which relief could be granted. GCR 1963, 117.2(1). The trial court heard oral argument on the motion and held, as a matter of law, that the facts pleaded in plaintiff’s complaint failed to describe any duty which defendant owed plaintiff and failed to raise a material issue of fact.
Plaintiff appeals, alleging that the trial court erred when it considered defendant’s affidavit in support of its motion for summary judgment. Plaintiff further alleges that his complaint did state a cause of action and did raise material issues of fact.
Motions for summary judgment for failure to state a cause of action upon which relief can be granted, GCR 1963, 117.2(1), need not be accompanied by supporting affidavits. However, the combination of subparts of the same court rule has been held proper. Durant v. Stahlin (1965), 375 Mich 628, 644. Further, although defendant did not specifically refer to GCR 1963, 117.2(3), this deficiency is not fatal. MCLA § 600.2315(3) (Stat Ann 1962 Rev § 27A.2315 [3]); Retired Policemen & Firemen of the City of Lincoln Park v. City of Lincoln Park (1967), 6 Mich App 372, 375; Bloss v. Williams (1968), 15 Mich App 228, 231.
This problem is discussed at 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1969 Cum Supp, at pp 53-54:
“A possible source of trouble exists when affidavits are filed supporting a motion grounded ostensibly upon sub-rules 117.2(1) and (2), but seeking judgment under 117.2(3). . . .
“However, in decisions under Rule 117, the Court has proceeded to an examination of the question of existence of a material issue of fact, where affidavits in support of the motion have been filed, although the motion read as one grounded upon failure to state a valid cause of action. Durant v. Stahlin (1964), 374 Mich 82 (rehearing denied); Zimmerman v. Stahlin (1964), 374 Mich 93; Tripp v. Dzjwanoski (1965), 375 Mich 619. To the extent that the party opposing the motion is not misled, and is prepared to show that a question of fact does exist, the hearing should proceed on that basis, to achieve the benefits intended by the integration of functions under Rule 117. If, however, the party opposing the motion is misled to believe that only a challenge to the legal sufficiency of his pleading is intended, it would he unjust to proceed under sub-rule 117.2(3), unless a reasonable opportunity is granted to file opposing affidavits. Whenever supporting affidavits are filed, the cautious course would be to meet them with opposing affidavits, as though the motion was under sub-rule 117.2(3), even though it appears to he addressed only to the legal sufficiency of the pleadings.”
In this case it does not appear that plaintiff was misled. Plaintiff’s counsel actively contested the merits of his complaint at the hearing on the motion. Plaintiff also filed an affidavit in response to defendant’s motion, indicating that he also expected to argue the motion on grounds other than HCR 1963, 117.2(1). Thus, the trial judge properly considered defendant’s affidavit in support of its motion for summary judgment.
The Supreme Court, in Durant v. Stahlin (1965), 375 Mich 628, 638 noted the plaintiff’s burden when faced with a defendant’s motion for summary judgment:
“The basic rule in summary judgment matters is simple. Its application is often difficult. When properly challenged, plaintiff must establish that he has a case on the law and that there are some evidentiary proofs to support his allegations as to any material fact.” (Emphasis supplied.)
It thus became incumbent upon plaintiffs to establish that they stated a claim upon which relief could be granted, and that they raised material issues of fact.
An examination of plaintiff’s complaint reveals that no cause of action upon which relief could be granted is stated. Plaintiff’s allegations stand upon the bare assertion that a general contractor owes a legal duty to the employee of a subcontractor. The only time plaintiff raises his allegation of ultra-hazardous activity is in his answer to defendant’s motion for summary judgment. However, even if plaintiff were to have properly pleaded ultra-hazardous activity, we agree with the trial court in concluding that the work engaged in by plaintiff here does not amount to such ultra-hazardous activity.
The muddy, wet and slippery terrain was obvious and apparent to all. It was a condition caused not by defendant, but by the natural process of a warming sun melting the winter snows. It could plainly be seen by all that one’s footing would be unsure. Further, although plaintiff complains of a deficient work crew, he admitted that he had previously raised similar walls with less than a full complement:
“Q. Had you ever worked with one of your team members being absent at any time during the six weeks you were there?
“A. Yes, sir.
“Q. Had you ever done this type of work before, attempting to secure these garage sidings with only five, as opposed to six?
“A. I wouldn’t — you know, I couldn’t say for sure. I believe so because apprentices have to go to school one day every two weeks. So naturally there would have to be somebody gone, you know.”
The rule in Michigan is that a general contractor is under no duty to provide a safe place to work, Royal v. McNulty (1969), 17 Mich App 713, leave denied (1970), 383 Mich 766; Groleau v. Hallenbeck (1954), 340 Mich 519; nor to warn of obvious and apparent conditions, Gowdy v. United States (CA 6, 1969), 412 F2d 525, cert den (1969), 396 US 960 (90 S Ct 437, 24 L Ed 2d 425); Fisher v. Johnson Milk Company, Inc. (1970), 383 Mich 158; Groleau v. Hollenbeck, supra; Nephew v. Whitehead (1900), 123 Mich 255. Nor is it reasonable to assume that the general contractor should be required to substitute his judgment for that of plaintiff’s employer who has held himself out as proficient in the skill for which he was hired. Dees v. L. F. Largess Company (1965), 1 Mich App 421; McDonough v. General Motors Corporation (1970), 28 Mich App 7. There can be no actionable negligence where there is no legal duty owed plaintiff. Munson v. Vane-Stecker Company (1956), 347 Mich 377; 6 Moore’s Federal Practice, § 56.17 [42],
We recognize the reluctance of our Courts to affirm summary judgments, especially in negligence cases. However, in the instant case, no question of fact has been presented in the pleadings which, even if it could be resolved in plaintiff’s favor, would entitle him to judgment against defendant. Consequently, this Court holds that the judgment of the lower court was correct.
Affirmed. Costs to defendant.
All concurred.
Defendant’s vice-president filed an affidavit which outlined the terms of the contract between defendant and plaintiff’s employer. By the terms of the contract, plaintiff’s employer was responsible for the means, method and supervision of the work done. Defendant merely furnished plaintiff’s employer with the specifications which were to be followed.
Plaintiff’s affidavit was authored on the information and belief of plaintiff’s attorney and thus did not comply with the requirements of GCR 1963, 116.4 and 117.2(3), that they shall be made on personal knowledge. The trial court properly excluded this affidavit.
Plaintiff’s allegation of ultra-hazardous activity should have been added to his original complaint, GOB 1963, 117.3. | [
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Per Curiam.
Defendant Gilbert Sullivan was tried by a jury and on April 11, 1966, he was con victed of robbery armed, a violation of MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). The defendant did not take the stand in his own defense. He was subsequently sentenced to serve 10 to 20 years in the state prison. Delayed leave having been granted, defendant now appeals from the decision of the court.
It is argued that references by one of the prosecution’s witnesses to defendant’s previous imprisonment was so prejudicial that the trial court erred in denying a motion for mistrial. It is a well-recognized rule in Michigan that it is highly prejudicial for the jury to be informed of a previous conviction of the defendant. People v. Fleish (1948), 321 Mich 443; People v. Greenway (1962), 365 Mich 547.
Based on the record before us, we concur with the Court in United States v. Smith (CA6, 1968), 403 F2d 74, 77, which also addressed itself to remarks concerning the defendant’s previous imprisonment. In its opinion, the Court stated:
“We conclude that in this case the cautionary instructions of the trial judge could not eradicate the prejudice from the minds of the jurors. This is not to hold that in all cases cautionary instructions are not effective to cure defects in trial procedure.”
The instruction, in view of the facts of this case, was insufficient to remove any possible prejudice which might have existed in the jurors’ minds.
Beversed and remanded. | [
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Holbrook, J.
Plaintiff and defendant married on December 3, 1950. Three minor children were born of the marriage, one each in the years 1958, 1959 and 1960. The parties separated in 1963, and on October 16, 1963, plaintiff filed this action for divorce, and defendant counterclaimed for separate maintenance. In May, 1964, the plaintiff, a doctor, closed his medical practice in Michigan and moved to Reno, Nevada. In July, 1964, plaintiff filed suit for divorce in Nevada. Personal jurisdiction was obtained in Nevada over defendant through the appearance of her Nevada attorney. On March 27, 1964, the Circuit Court for Calhoun County entered an order requiring plaintiff to pay support payments for defendant and the three children of $750 per month. On July 10, 1964, plaintiff made a motion to reduce the support payments in the Calhoun County Circuit Court claiming earnings of $6,240 per year. The court, in an order dated July 17, 1964, reduced support payments to $17.50 per week per child. On December 16, 1964, the parties entered into a property settlement agreement, the pertinent provisions of which were arrived at in open court in the Calhoun County Circuit Court with both parties appearing by their attorneys. On December 24, 1964, the defendant wife acknowledged the written property settlement in Michigan. On January 7, 1965, the plaintiff husband acknowledged the written property settlement in Nevada. In addition to child custody and the disposition of other marital property, the agreement provided for support payments of $20 per week for each child and $40 per week for alimony to be paid by plaintiff to defendant wife until subsequent order of the court.
On January 11, 1965, judgment was entered by the Calhoun County Circuit Court granting defendant separate maintenance, and incorporated the provisions of the property settlement agreement in the judgment. The plaintiff was represented by his counsel at this hearing.
Judgment of divorce in favor of plaintiff was entered in the Nevada court on January 13, 1965, which also incorporated the property settlement of the parties. Defendant was represented by her counsel at this hearing.
Plaintiff returned to Michigan in the spring of 1965 and resumed his medical practice.
The Nevada judgment provided:
“That the agreement dated December 16, 1964, settling the property rights of the parties, providing for alimony payments to the defendant, and providing for the support and maintenance of the minor children is hereby approved by the court, is incorporated herein and made a part of this decree the same as if set forth herein in toto, and the parties are hereby ordered to comply with the terms, covenants, and conditions therein.”
Defendant filed two separate petitions in Michigan to amend Michigan judgment of separate maintenance and to increase support and alimony. The court, in each instance, increased the plaintiff’s weekly payments from $20 to $40 per child on the basis of plaintiff’s improved financial condition and finally to $50 per week per child and $50 per week to defendant starting August 11, 1969. Plaintiff appeals from the court’s order increasing the defendant wife’s alimony.
We restate the issue presented upon this appeal as follows: Under the facts in this case, does the Calhoun County Circuit Court have jurisdiction over the plaintiff herein and authority to modify the alimony payments under the judgment of separate maintenance, or does the Nevada judgment of divorce create jurisdictional estoppel?
The property settlement agreement was in the first instance, recognized and given force in the Michigan court. It was also given Nevada judicial sanction through its incorporation in the Nevada divorce judgment. The property settlement provided for weekly alimony of $40 until the wife dies or remarries or until subsequent order of said court if separate maintenance is adjudged. The Michigan court, where the property settlement was first introduced and given effect, granted a judgment of separate maintenance. The mandate of the property settlement then became effective, and the provision for alimony could be changed as the parties required from time to time, in accordance with Michigan law. Through mutual consent of the parties, and with or without Nevada approval, the Michigan court re tained jurisdiction to alter or modify the alimony payments.
Nevada courts uphold and enforce the clearly stated intentions of the parties in a property settlement agreement. This is an exception to the Nevada Revised Statutes § 125.170 which requires express retention of jurisdiction to modify. Aseltine v. Second Judicial District Court (1936), 57 Nev 269 (62 P2d 701); Ballin v. Ballin (1962), 78 Nev 224 (371 P2d 32).
Michigan has adopted the concept of “divisible divorce” developed by the New York Courts and the United States Supreme Court. Malcolm v. Malcolm (1956), 345 Mich 720; Reinink v. Reinink (1970), 24 Mich App 202.
In Estin v. Estin (1948), 334 US 541 (68 S Ct 1213, 92 L Ed 1561) the Supreme Court affirmed a New York determination that Mr. Estin’s obligation continued despite the Nevada decree terminating any support obligation of the husband. In Vanderbilt v. Vanderbilt (1957), 354 US 416 (77 S Ct 1360, 1 L Ed 2d 1456) the Court held that a separate maintenance action could be brought after a foreign divorce decree.
The theory and rationale of the rule is explained in the following quotation of Supreme Court Justice Douglas in the Estin case:
“New York was rightly concerned lest the abandoned spouse be left impoverished and perhaps become a public charge. The problem of her livelihood and support is plainly a matter in which her community had a legitimate interest.” 334 US at 547 (68 S Ct 1217, 92 L Ed 1568).
“The result of this situation is to make the divorce divisible — to give effect to the Nevada decree insofar as it affects marital status and to make it in effective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.” 334 US at 549 (68 S Ct 1218, 92 L Ed 1569).
We conclude in any event that under the divisible divorce rule a decree of divorce obtained in another state does not terminate the Michigan spouse’s right to support.
With established jurisdiction, a Michigan court may refer to the prior judgment for separate maintenance (judgment of January 11, 1965) and has statutory authority to modify alimony support provisions at any time. MOLA § 552.28 (Stat Ann 1957 Rev § 25.106); Pohl v. Pohl (1968), 13 Mich App 662.
The record indicates a clear and definite decrease in the financial condition of defendant wife, resulting in obvious hardship. Plaintiff’s income on the other hand has increased considerably to a gross income in excess of $100,000 per year. Under these circumstances the allowance of $50 per child per week and $50 weekly alimony is not unreasonable. We are not convinced that we would have had to reach a different result had we occupied the position of the trial court. Wells v. Wells (1951), 330 Mich 448; Ethridge v. Ethridge (1948), 322 Mich 578; Young v. Young (1968), 13 Mich App 395 and Ross v. Ross (1970), 24 Mich App 19. Defendant has requested that we set the attorney fees to be awarded to defendant on this appeal. Under the circumstances in this case, We deem it proper to do this.
Affirmed. Costs to defendant together with attorney fees which are set at $1,500.
All concurred. | [
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McGregor, J.
Plaintiffs, judges of the Macomb county circuit court, bring a mandamus action against the State Treasurer, seeking to compel him to pay them the full $20,000 annual state salary prescribed by statute. The statute is set out in full as follows:
“Each circuit judge shall receive an annual salary of $20,000.00 payable by the state. The boards of supervisors in their discretion may vote to pay the circuit judge or judges of their respective counties a salary in addition to the amount of the state salary. In no case shall the total of the salary payable by the state plus the salary payable by the county exceed $30,000.00. Wherever county board of supervisors supplements the state salary so that the total of the state and county salaries would exceed $30,000.00, the salary payable by the state shall be reduced so that the total of the state and county salaries is $30,000.00.” MCLA § 600.555 (Stat Ann 1970 Cum Supp § 27A.555) as amended, PA 1966, No 252.
Until March, 1969, plaintiffs each received a salary at the rate of $20,000 annually from the State of Michigan, and $11,000 from the County of Ma- comb, for a total salary of $31,000. In March, 1969, the State Treasurer, pursuant to PA 1966, No 252, decreased state-paid compensation to $19,000.
Plaintiffs filed a petition for a writ of mandamus in this Court on July 23, 1969; their complaint alleges that the $30,000 total annual salary limitation of PA 1966, No 252, violates the Michigan Constitution of 1963 in these respects:
1. It infringes upon the county’s right to supplement the salary of its judges, in violation of Const 1963, art 6, § 18, ¶ 2;
2. It requires a decrease in the judges’ salaries during their terms of office, in violation of Const 1963, art 6, § 18, ¶ 1;
3. It diminishes the judges’ rights in pension and retirement plans, in violation of Const 1963, art 9, §24.
Defendant first questions whether mandamus is the proper action for the relief which is sought. The principles governing the availability of this legal remedy were reviewed in Toan v. McGinn (1935), 271 Mich 28, 34, where it was said:
“The applicable rules are clear. To support mandamus, plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one ‘where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.’ ” 38 C J p 598, cited with approval in Solo v. City of Detroit (1942), 303 Mich 672, 676, 677; Mardiros v. Secretary of State (1968), 11 Mich App 541.
It is defendant’s position that the statute requires him to do exactly as he did, and that he had a clear legal duty to do as he did. Defendant argues that this duty precludes the use of mandamus even though the constitutionality of the statute which creates the duty is in question. We do not agree. The Supreme Court has recognized the right to litigate constitutional questions in a mandamus action. Giddings v. Secretary of State (1892), 93 Mich 1; Scholle v. Secretary of State (1962), 367 Mich 176.
Procedurally analogous is the recent case of Wolverine Golf Club v. Secretary of State (1970), 24 Mich App 711. Plaintiff therein sought to compel the Secretary of State to accept an initiative petition for submission to the legislature. Defendant’s contention was that he had complied with his duty, as defined by statute; plaintiffs urged that the statute itself was unconstitutional. The trial court therein concluded that mandamus was the proper remedy, if plaintiffs were entitled to relief. We find that mandamus is a proper action in the instant case.
' One of the constitutional provisions applicable herein is Const 1963, art 6, § 18, which provides:
“Sec. 18. Salaries of justices of the supreme court, of the judges of the court of appeals, of the circuit judges within a circuit, and of the probate judges within a county or district, shall be uniform, and may be increased but shall not be decreased during a term of office except and only to the extent of a general salary reduction in all other branches of government.
“Each of the judges of the circuit court shall receive an annual salary as provided by law. In addition to the salary received from the state, each circuit judge may receive from any county in which he regularly holds court an additional salary as determined from time to time by the board of supervisors of the county. In any county where an additional salary is granted, it shall be paid at the same rate to all circuit judges regularly holding court therein.”
Defendant concedes that the legislature may not constitutionally place a ceiling upon the salaries to he paid to circuit judges. Defendant contends that there is no factual support on this record to demonstrate the existence of any ceiling. The question, argues the defendant, is whether the legislature has the authority, consistent with the constitution, to provide that the state salary of a circuit judge may be reduced to the extent that the supplement by the county, when added to the basic sum of $20,000 would exceed the total sum of $30,000. Defendant concludes that PA 1966, No 252 is not repugnant to Const 1963, art 6, § 18.
When the question of judges’ salaries arose in the State Constitutional Convention of 1961, Delegate Danhof indicated that separate state and county action was contemplated in wording the final provision and, in response to the question whether the second paragraph of § 18 was necessary, Delegate Danhof said:
“ * * * It is very possible that what [Mr. Wagner] you say is absolutely true, that the legislature could provide that counties within the circuit could supplement the salary granted by the state, which is now $12,500.00. It is also true, however, that they could prohibit this. * * * but it is a prohibition against the legislature prohibiting the contribution by counties within a circuit.
“ * * * It seems to me that it was not too long ago that there was attempted to be imposed a maximum salary, if I’m not mistaken. Maybe some of the delegates from Wayne County can recall that a little better than I could, but it seems to me that it was not too many years ago that the legislature endeavored to limit what could be contributed by the counties and it was found to be unconstitutional.” 1 Official Record, Constitutional Convention 1961, p 1532.
Const 1963, Art 6, § 18, ¶ 2, grants any county the specific right to supplement a judge’s salary. As Delegate Danhof, who was chairman of the judiciary committee at the Constitutional Convention, points out, the language was placed in the constitution as a “prohibition against the legislature prohibiting the contribution by counties within a circuit”.
While PA 1966, No 252, is not an express prohibition on county supplementation, it effectively mitigates any attempt by counties within a circuit to provide their judges with more than a $30,000 salary. To say that the PA 1966, No 252 is only an interference and does not place a “ceiling” on the amount that can he paid to circuit judges by the county is merely to engage in semantic exercise. The act curtails the right of the county hoard of supervisors (now commissioners) to supplement the judges’ salaries, since any supplementation will automatically he nullified by a simultaneous reduction in the state salary. The following rule of law is governing, in determining whether the entire statute or only a portion thereof is unconstitutional:
“Sec. 5. In the construction of statutes of this state the following rules shall be observed, unless such construction would he inconsistent with the manifest intent of the legislature, that is to say:
“If any portion of an act or the application thereof to any person or circumstances shall he found to he invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can he given effect without the invalid portion or application, provided such remaining portions are not determined by the court to he inoperable, and to this end acts are declared to he severable.” MCLA § 8.5 (Stat Ann 1969 Rev § 2.216).
Consonant with this statute, beginning
“Each circuit judge shall receive an annual salary of $20,000.00 payable by the state. The hoards of supervisors in their discretion may vote to pay the circuit judge or judges of their respective counties a salary in addition to the amount of the state salary”
is separable from the remainder of subsection (1) of MCLA § 600.555 (Stat Ann 1970 Cum Supp § 27 A-.555) as amended by PA 1966, No 252, and the remainder of subsection (1) is stricken, as being repugnant to Const 1963, art 6, § 18.
Plaintiffs’ complaint for mandamus is granted, with the directions that the State Treasurer pay to the said plaintiffs the full salary, in the amount of $20,000, from March, 1969. Nevertheless, because of the administrative order of the Supreme Court of February 3-4,1969, the effectiveness of this opinion is stayed until the further order of the Supreme Court.
Having decided as we do, the other issues raised by plaintiffs need not he decided herein.
No costs, a public question being involved.
All concurred.
The Court may consider the record of the Constitutional Convention as an interpretative aid. Burdick v. Secretary of State (1964), 373 Mich 578, 584; Beech Grove Investment Co. v. Civil Rights Commission (1968), 380 Mich 405; Wolverine Golf Club v. Secretary of State (1970), 24 Mich App 711.
The reference to $12,500 in Delegate Danhof’s remarks was to PA 1954, No 155, wherein the circuit judges and the recorder’s court judges’ salaries were then $12,500. The statute set out:
“Each circuit judge and each of the judges of the recorder’s court shaU receive an annual salary of $12,500.00. The amount herein provided shall be compensation in full for all services performed by each of said judges in this state, unless the board of supervisors shall have, or at any regular session hereafter shall vote to pay the circuit judge regularly holding court in such county or unless the common council shall vote or shall have voted to pay the judges of the recorder’s court, an amount in addition to the salary herein designated: Provided, That if the board of supervisors shall have heretofore or hereafter voted an additional amount which when added to said annual salary will exceed a total of $22,500.00, said annual salary shall be such part of $12,500.00 as shall, when added to said additional amount, not exceed $22,500.00.”
When the legislature implemented this constitutional provision, Const 1963, Art 6, § 18, it revised the 1954 enactment:
“Each circuit judge shall receive an annual salary of $15,000.00 payable by the state. The boards of supervisors in their discretion may vote to pay the circuit judge or judges of their respective counties a salary in addition to the amount of the state salary.” PA 1963, No 172.
In PA 1965, No 284, however, the legislature re-inserted the 1954 language retaining the $15,000 state payment, but providing for a reduction in the payment if the county supplement extended the judge’s salary beyond $30,000.:
“Each circuit judge shall receive an annual salary of $15,000.00 payable by the state. The boards of supervisors in their discretion may vote to pay the circuit judge or judges of their respective counties a salary in addition to the amount of the state salary. In no case shall the total of the salary payable by the state plus the salary payable by the county exceed $30,000.00. When a county board of supervisors votes to increase the county portion of the salary so that the total of the state and county salaries would exceed $30,000.00, the salary payable by the state shall be reduced so that the total of the state and county salaries is $30,000.00.”
PA 1970, No 248, is substantially the same as PA 1966, No 252, except that an annual state salary of $24,000 was payable, and provided that the total salary payable by the state plus the salary payable by the county shall not exceed $35,000 and that, if it shall, the salary payable by the state shall be reduced so that the total of the state and county salaries is $35,000.
The pertinent part of the Supreme Court memorandum to the Court Administrator, from the minutes of its conference of February 3-4, 1969, reads: “* * * that until such time as this Court is called upon to make a judicial determination with respect to the constitutionality of the statute, it is the administrative order that the statute be complied with by the Court Administrator.” | [
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Per Curiam.
Defendant was charged with first-degree murder, MCLA § 750.316 (Stat Ann 1954 Rev § 28.548); he was tried before a jury which returned a verdict of second-degree murder, MCLA § 750.317 (Stat Ann 1954 Rev § 28.549). Defendant appeals as of right.
Testimony adduced at the trial showed that on the evening of January 24, 1969, defendant was sitting in the living room of the residence which he shared with the deceased. A female companion of the deceased came to visit and, on the deceased’s invitation, the two women entered the kitchen. While they were standing in the kitchen, conversing in a low tone, defendant rose from the couch, went to the closet and took out a shotgun; upon proceeding to the kitchen door, he allegedly aimed the gun at the deceased and the gun discharged, killing her. When the police arrived, the defendant stated something to the effect that he had just done something he should have done a long time ago. The defendant testified at trial that he did not know the gun was loaded and that the gun had accidentally discharged when the deceased’s companion had humped him while she was trying to get out of the kitchen. He stated that he used the gun in an attempt to frighten the companion so that she would leave.
During the trial, the prosecution questioned the defendant regarding any other crimes he may have been arrested for and convicted of, for the purpose of testing his credibility:
“Q. (Mr. Stevens, assistant prosecutor): You told counsel that you have never been convicted of any crimes, is that correct?
“A. (Defendant): Right.
“Q. Are you sure?
“A. Sure.
“Q. Never convicted of any crimes?
“A. If I have, I don’t know the record.
“Q. All right. Your name is Ora T. Jones, is that correct?
“A. Yes.
“Q. ‘T.’ for Turner?
“A. That’s right.
“Q. Have you ever been known as Ora Turner Jones?
“A. Yes.
“Q. Have you ever lived in the Royal Oak Township?
“A. Royal Oak Township?
“Q. Yes?
“A. Yes, I have.
“Q. I asked you were you ever arrested and convicted of any crimes ? I am asking you whether you were arrested and convicted of any crimes?
“A. No, sir.
“Q. I ask you, have you ever been convicted of any crimes in the Royal Oak Township, in 1955?
“A. No, sir.
“Q. All right. Have you ever been convicted of any crimes in or around 1960?
“A. No, never.
“Q. How about September 21st, 1960?
“A. 1960?
“Q. Yes?
“A. No, no convictions.
“Q. Pardon me?
“A. No convictions.
“Q. Were you ever in this court?
“A. Never in this court, no.
“Q. Not in this building, Recorder’s Court?
“A. Recorder’s Court?
“Q. Yes?
“A. Yes, I was in Recorder’s Court.
“Q. Were you convicted in Recorder’s Court, 1960?
“A. No.
“Q. Did you ever go to Plymouth?
“A. Yes.
“Q. When?
“A. About 1960.
“Q. Were you sentenced out of this court?
“A. Friend of the Court.
“Q. Were you sentenced out of this court?
“A. I wasn’t exactly sentenced.
“Mr. Roberts [For the defense]: I think the court will take judicial notice that Recorder’s Court doesn’t handle Friend of the Court matters.
“The Court: Just a moment, no, they don’t. That is a function of circuit court, and the counsel did not give that answer, that was the witness’s answer.
“Q. (By Mr. Stevens, continuing): Were you ever in Recorder’s Court, in Detroit, on September 21, 1960?
“A. (No response).
“Q. Is your answer yes or no?
“A. I refuse to answer, feeling it will incriminate me.
“Mr. Roberts: He answered no.
“The Court: Is that his answer?
“Mr. Stevens: His is on the record as I heard it.
“The Court: Go ahead with your questioning.
“Q. (By Mr. Stevens, continuing): Well, the record is clear. I’m asking you, on or about the 21st of September, 1960, were you convicted and your answer is no and I have it on the record. Have you been arrested or convicted of anything in 1967 ?
“A. 1967, no.
“Q. September 16, 1967 ?
“A. No.
“Q. Never?
“Mr. Roberts: If the Court please, I’m going to object to this line of questioning.
“The Court: The answer is no.
“Mr. Roberts: Yes, but your Honor —”
Defense counsel objected and moved for a mistrial, which the court denied after the prosecution promised to produce evidence to substantiate the convictions. No evidence was introduced to establish that the foregoing allegations were true. The insinuations and innuendoes of unproven convictions served to undermine defendant’s credibility, and tended to destroy his defense of accidental killing.
Defense counsel refers us to People v. Di Paolo (1962), 366 Mich 394. There, the people asked whether defendant had ever been convicted of rape; the defendant denied that he had, and the people implied that the denial was contrary to a police record, which was not produced. The Court held that the failure of the prosecution to establish that the defendant had in fact been convicted of the crime was reversible error:
‘“Q. All right. Now, you testified you had been in Erie, Pennsylvania in 1950, is that correct?
“ ‘A. Yes, sir. * * *
“ ‘Q. You also testified you had been convicted of 1 crime, is that correct?
“‘A. Yes, sir.
“ ‘Q. I will ask you whether or not on the 23rd day of November, 1950, you were convicted of rape in Erie, Pennsylvania?
“‘A. I was not convicted. I, — this is very important to me to make statement about this. I, —
“ ‘Q. The answer is either “yes” or “no.”
“ ‘A. No, sir.
“ ‘Q. So if the police records show that, they are wrong 1
“ ‘A. Yes, sir.’
“After some further questions relating to defendant’s past conduct counsel again referred to the alleged offense in Pennsylvania, and the following occurred :
‘“Q. You deny the rape in Pennsylvania?
“ ‘A. No deny. I was find no guilty. No rape.
“ ‘Q. So if the record shows you were convicted of rape in Pennsylvania, then this record is wrong?
“ ‘A. Yes, sir.’ ” People v. Di Paolo, supra, 395, 396.
In the instant case, the prosecution repeatedly inquired whether defendant had even been arrested and convicted of any other crimes. The cumulative effect of such innuendoes need not be expounded upon. We find the instant case comes within the interdiction of People v. Di Paolo, supra, and requires reversal, with a new trial.
Having reached this conclusion, it is unnecessary to consider the other claims of error advanced by defendant.
Reversed and remanded. | [
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O’Hara, J.
The parties to this appeal have filed a stipulated statement of facts, pursuant to GCR 1963, 809 and 812.10.
Plaintiff, Virgil Green, was riding a motorcycle when struck by a vehicle owned and operated by defendant, Blicharski. Defendant was an uninsured motorist, but plaintiff’s insurance provided for uninsured motorist coverage.
Plaintiffs filed a claim for injuries sustained by them under the uninsured motorists provision of their policy with Allstate Insurance Company. The Allstate policy provided that the maximum amount payable by Allstate would be $10,000, but that the exact amount should be agreed upon by the insured and the company. In the absence of such agreement, arbitration in accordance with the rules of the American Arbitration Association would be binding. Plaintiffs and Allstate were unable to agree. Following a contested hearing, the arbitrator awarded plaintiffs $7,250 in full satisfaction of Allstate’s obligation under its policy.
Having filed a timely notice of intent to claim, under the Motor Vehicle Accident Claims Act, plaintiffs then filed suit against defendant Blicharski to recover the damages sustained by them in the accident. On trial, plaintiffs were awarded judgment against defendant of $16,000, plus interest and cost. They thereafter filed a motion pursuant to MCLA § 257.1107 (Stat Ann 1968 Rev § 9.2807) to compel payment from the fund for the sum of $10,447, being the difference between the amount of the circuit court judgment and the arbitration award already obtained by plaintiffs.
The Attorney General’s office, representing the Secretary of State on behalf of the fund, contended that the actual sum owing was $6,000 plus costs, alleging that the correct formula was to subtract plaintiff’s policy limit ($10,000) under their uninsured motorist coverage from the amount of the judgment.
Per contra, plaintiffs contend that the fund is obligated to them for the difference between the arbitrator’s award ($7,250) and the circuit court judgment ($16,000) or $8,750, plus interest and costs, a total of $10,477. The fund appeals from the amount of the judgment of the trial court in favor of plaintiffs.
The question then is not whether the fund is liable, hut in what amount. We examine the pertinent section of the statute, MOLA § 257.1122 (Stat Ann 1968 Rev § 9.2822):
“(2) No payment shall he made out of the fund in respect to a claim or judgment for damages or in respect to a judgment against the secretary, or any amount paid or payable by an insurer by reason of the existence of a policy of insurance * # *
“(3) No amount sought to be paid out of the fund shall be sought in lieu of making a claim or receiving a payment that is payable by reason of the existence of a policy of insurance, * * * .”
It is immediately apparent that we are called upon to determine the difference between the meaning of the terms “paid” and “payable” as used in the statute, as those terms affect the case at bar.
There is none. The amount “payable” is the amount “paid”. This, of course, is by reason of the arbitration clause in the policy. After the arbitration award was made according to the terms of the policy, there was nothing more “payable”. The reason is because the policy says so. The only way to sustain the fund’s position would be to hold the arbitration clause void as against public policy or by reason of some specific statutory prohibition against it. There is neither.
The arbitration clause of the Allstate policy has been upheld by this Court as a valid method for adjudicating claims under the policy. Bradt v. Allstate Insurance Company (1970), 21 Mich App 529. The award by the arbitrator is final. It must be confirmed by the court absent a showing of one of the defects spelled out by GCR 1963, 769.9. It may be modified or corrected only on a showing of one of the grounds specified in GCR 1963, 769.10. Under Court Rule 769, the finality of the arbitrator’s award is not vitiated by the fact that in a separate proceeding greater damages are found by a court. In this case, the award of the arbitrator to plaintiffs was final. The amount payable, therefore, under the Allstate policy is the amount determined by the binding arbitration.
Following the valid, binding and final award of the arbitrator, plaintiffs had no further recourse against the insurance company. Plaintiffs have not limited their recovery against the insurance company in order to claim against the Motor Vehicle Accident Claims Fund. They have, with full diligence and vigor, recovered from Allstate all that is payable to them under the policy. The $10,000 policy limit does not represent the amount payable under the insurance policy. It is merely a maximum fixed by contract, which the arbitration award could not exceed. In the instant case, the amount “paid” and the amount “payable” under the policy are one and the same.
The requirement of compulsory arbitration under the policy is a limitation, no different in kind than that limiting recovery for personal injury, thus excluding property damage.
As we have said on many prior occasions, where public policy or a specific statute is not offended, parties may contract as they choose. We cannot rewrite their contracts.
The result sought by the fund through the Attorney General doubtless could be had by legislative amendment. We eschew amendment by interpretation.
The order of the trial judge is affirmed. No costs.
All concurred.
MCLA § 257.1101 et $eq. (Stat Ann 1968 Rev § 9.2801 et seq.). | [
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] |
T. M. Burns, J.
Plaintiffs filed suit July 23,1968, against the City of Portage and its treasurer, Donald Gage, seeking a circuit court judgment declaring a special assessment to improve Kilgore Road unlawful, and an injunction against both defendants from collecting such special assessment. The City of Kalamazoo petitioned to intervene as a party defendant, and the petition was granted on October 11, 1968. After a six-day nonjury trial, judgment was entered November 7, 1969, dismissing plaintiffs’ complaint. Plaintiffs appeal to this Court as of right.
Sometime in 1966, the Kalamazoo County Road Commission approached the cities of Portage and Kalamazoo with the idea of widening and improving the most westerly section of Kilgore Road. The strip in question runs from Westnedge Avenue on the east to Oakland Drive on the west where Kilgore Road ends, a distance of about one mile.
Kilgore Road is a straight east-west one, largely residential in character, separating the City of Kalamazoo on the north from the City of Portage on the south. Presently the road is two-lane with a bituminous surface and is 22 feet wide. The road is in very poor condition due to large cracks caused by water damage. The visibility is poor due to frequent hills and the road shoulders are presently in very poor condition. Complaints have also been registered about dust and drainage problems by abutting property owners.
Due to the above problems, the three governmental units (Kalamazoo County, City of Portage, and City of Kalamazoo) decided to improve the road by widening it to four lanes; repaving with reinforced concrete; regrading; and installing curbs, gutters, and a storm sewer to prevent further damage from water drainage. The total cost of the project, to be shared by all three governmental units, was estimated to be about $411,481.93. About one-fourth of this cost was to be borne by the property owners abutting Kilgore Road.
Plaintiffs contended below that the special assessment is void because no special benefit will be conferred upon them as abutting property owners due to the widening and improving of Kilgore Road. Plaintiffs cite the fact that all of the old trees lining both sides of the road will have to be removed and replaced with young small ones. They also contend that living next to a new four-lane road rather than the present two-lane road with the consequent increase in traffic is a detriment rather than an improvement. Plaintiffs also contend that the proposed changes in Kilgore Road will have a detrimental effect on property values.
Defendants’ position at the trial was that traffic would not significantly increase because Kilgore Road “dead-ends” at Oakland Drive; and, therefore, the function of the road would remain a “collector” road rather than an “arterial” road. Defendants also pointed out several other nearby artery routes which would continue to service the through traffic.
Defendants cited several presently existing safety hazards which would he cured by the proposed improvements and introduced expert testimony to es tablish that property values would actually increase rather than decrease as a result of the proposed changes.
Municipal corporations may, of course, levy special assessments upon property “abutting upon and adjacent to” an improvement MCLA § 104.1 (Stat Ann 1949 Rev § 5.1825), based upon the theory that a special benefit, over and above the general benefit conferred upon the city as a whole, is being conferred upon such property. Although the benefit must be peculiar to them because of their proximity to the improvement, the benefit may exist in a number of forms:
“Special benefits require an increase in value, relief from a burden, or the creation of a special adaptability in the land. 63 CJS, Municipal Corporations, § 1371, p. 1128.” Sconcoff v. City of Inkster (1970), 22 Mich App 358, 361.
The Michigan Supreme Court has held that the widening of a residential street into a four-lane main artery would not confer the type of benefit which would subject the abutting owners to a special assessment. Brill v. City of Grand Rapids (1970), 383 Mich 216; Fluckey v. City of Plymouth (1960), 358 Mich 447. However, both of the Supreme Court cases cited dealt with the situation where a residential street was converted, more or less, into a highway. The whole character of the street and the neighborhoods had been changed as a result of the improvements, causing a great deal of deterioration in the quality of life experienced by abutting land owners.
In the instant case, Kilgore Road is hardly capable of being transformed into a through highway since it “dead-ends” at Oakland Drive. There are also in existence other thoroughfares in the Kilgore Road area which presently accommodate through traffic traveling east and west. We therefore find Brill and Fluckey distinguishable on the facts from the situation presented here.
The trial judge found that the improvements would make Kilgore Road safer, give the abutting land owners easier ingress and egress, and also that the value of the homes would increase due to the improvements. Our review of the record leads us to the conclusion that the trial court’s findings of fact are fully supported by the evidence.
The benefits which the trial court found will be conferred upon the abutting land owners by the improvement of Kilgore Road are the type which would be subject to a special assessment. The abutting land owners will benefit the most from having a safer road. Easier ingress and egress is also a special benefit to the abutting owners as would be any increase in property value. Therefore, since the abutting land owners will be the recipients of special benefits as a result of the improvements, the trial court was correct in upholding the special assessment.
Plaintiffs also contend that the formula used by the cities to arrive at the amount of the special assessment is improper. Defendants have one formula for all special assessment situations based upon the theory that any street is of about equal benefit to the frontage owner. It is plaintiffs’ position that the assessors must employ a “balancing test”, i.e., weighing special benefits against special detriments, to compute the amount of the assessment.
We cannot agree with the plaintiffs’ position. Plaintiffs rely upon Fluckey v. City of Plymouth (1960), 358 Mich 447, as standing for the proposition that a balancing test must be employed:
“The assessors * * * weigh the benefits, if, in truth, there are benefits to be weighed.” Fluckey v. City of Plymouth, supra, p 454.
However, the quoted sentence has been taken out of context. The Supreme Court in that case had found that the proposed improvement had, in fact, conferred a detriment rather than a benefit upon the abutting land owners. The court, in affirming the trial court’s ruling that the assessment was void, stated at page 454:
“It must be stressed that the facts before us do not involve a mere error in judgment on the part of assessing authorities. We do not trifle with such. Nor do they involve the substitution of the judgment of the court upon the worth of special benefits conferred. The assessors, not the court, weigh the benefits, if in truth, there are benefits to be weighed. The point here is more fundamental: where, viewed in its entirety, no benefit upon abutting property owners has been conferred by the improvement, but rather a detriment suffered, a special assessment based upon the enhancement of the value of the property is a fraud in law upon such property owners.”
In the instant case the trial court found that the proposed improvement would confer a special benefit on the abutting land owners. Our review of the evidence leads us to the same conclusion. We will not, therefore, substitute our judgment for that of the assessors upon the worth of the benefits conferred. Absent some showing that the assessment is unreasonable or out of proportion to the benefits conferred, we will not set aside the assessor’s judgment.
Affirmed.
No costs, since a public question is involved.
All concurred.
See Fluckey v. City of Plymouth (1960), 358 Mich 447; Knott v. City of Flint (1961), 363 Mich 483. | [
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