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N. J. Kaufman, J.
John Desgrange was employed by Thomas Coaches as an autobody repairman. Employees were allowed to work on their own cars at the garage after hours or during lunch hours. On April 8, 1980, Desgrange brought his 1977 Pontiac Trans Am to the garage to replace a rusting exhaust system. Instead of replacing the factory exhaust system with a standard replacement exhaust system, Desgrange intended to put on "headers”.
To remove the old manifold, Desgrange had to use a cutting torch to remove a stripped bolt. Sparks from the torch ignited a bucket of waste paint thinner and motor oil. As Desgrange attempted to move the bucket away from the car, it tipped over. The resultant fire caused over $67,000 damage to the garage. The plaintiff, Michigan Basic Property Insurance Association (MBPIA), the garage’s insurer, paid for the damage and then sued Desgrange and Michigan Mutual Insurance Company, the insurer of the automobile. The plaintiff claimed that Desgrange’s no-fault carrier was liable for the damages. The Oakland County Circuit Court granted summary judgment for the plaintiff. Defendant Michigan Mutual appeals.
I
Michigan Mutual argues that the damage is not covered by the no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq. Instead, the defendant claims that MBPIA is liable as the garage keeper’s liability insurer. The dispute stems from the scope of the no-fault act. That statute provides:
"Under property protection insurance an insurer is liable to pay benefits for accidental damage to tangible property arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle * * *.” MCL 500.3121(1); MSA 24.13121(1).
"Maintenance” is the relevant term here.
Michigan Mutual relies on the definition of "maintenance” used in Liberty Mutual Ins Co v Allied Truck Equip Co, 103 Mich App 33; 302 NW2d 588 (1981):
" 'Maintenance’ is defined in Webster’s New Collegiate Dictionary as 'keeping in an existing state’. While the installation of an auxiliary gas tank might arguably fall outside this strict definition, Allied was correcting a carburetor flooding problem when the accident occurred, so we find the acts of Allied constitute maintenance of the vehicle. See, for example, Miller v Auto-Owner’s Ins Co, 92 Mich App 263; 284 NW2d 525 (1979), where a determination that installation of shock absor bers constituted 'maintenance’ was not challenged.” 103 Mich App 40.
Michigan Mutual urges us to adopt the dicta of Liberty Mutual regarding the installation of nonessential equipment (an auxiliary gas tank in Liberty Mutual, headers in our case) and the narrow definition in Webster’s. We believe, however, that the Liberty Mutual Court’s discussion of "maintenance” was rejected by the Supreme Court in Miller v Auto-Owners Ins Co, 411 Mich 633; 309 NW2d 544 (1981), where the Court adopted a broader definition of "maintenance”:
"The meaning of the term 'maintenance’, in addition to appearing from the common sense of the word, has been established in the case law: 'The "maintenance” aspect of the "ownership, maintenance, use” clause covers the act of repairing the covered automobile.’ 12 Couch on Insurance (2d ed), § 45:63, p 152. The policy embodied in the requirement of § 3105(1) that coverage extend to 'injury arising out of the * * * maintenance * * * of a motor vehicle as a motor vehicle’ thus is to provide compensation for injuries, such as Miller’s, incurred in the course of repairing a vehicle.” 411 Mich 639.
We believe Desgrange was "repairing the covered automobile” within the meaning of Auto-Owners. The exhaust system on his car needed replacing. He was replacing it. It should not matter that he was replacing a stock exhaust system with high-performance headers. Just as the Supreme Court has spurned artificial distinctions when the "parked car” exclusion of the no-fault act is involved, Auto-Owners, 411 Mich 633, 638, we believe the Legislature did not intend to differentiate between replacement with stock parts and replacement with other parts. Allowing the defendants’ argument would lead to confusing attempts to define "stock” parts and "high-performance” parts and may cause legal differences when a mechanic uses a "better” or "worse” brand instead of a replacement part built by an automobile manufacturer. The no-fault act is intended to simplify liability questions, not muddy them with fine distinctions. Considering also that Desgrange would have had to use a blow torch to install any system —because he had to remove the old system — we believe the fire damage arose out of the maintenance of the insured motor vehicle.
II
Michigan Mutual next argues that, notwithstanding the fact that the damage arose out of the maintenance of a motor vehicle, public policy dictates that the insurer of a damaged structure pay for such damage. Under the guise of this "public policy” argument, both parties have urged us to take sides in a split of appellate decisions balancing the no-fault act against the garage keeper’s liability act, MCL 256.541 et seq.; MSA 9.1721 et seq. One line of authority holds that the no-fault act is subordinate to the garage keeper’s act because the Legislature is presumed to know of existing law at the time the no-fault act was passed. Liberty Mutual, supra, p 41. Another line of cases holds that the no-fault act renders meaningless "fault” determinations in situations where the no-fault act and the garage keeper’s liability act overlap, and, accordingly, the no-fault liability controls. Buckeye Union Ins Co v Johnson, 108 Mich App 46; 310 NW2d 268 (1981), lv den 414 Mich 873 (1982); Liberty Mutual Ins Co v Ins Co of North America, 117 Mich App 197; 323 NW2d 650 (1982). We decline to take a position on this issue. Because Mr. Desgrange was working on his own car, and not a customer’s, the garage keeper’s liability act and its attendant cases are inapplicable. Under these circumstances, the no-fault insurer’s liability is clear under MCL 500.3121; MSA 24.13121.
Ill
The plaintiff, MBPIA, seeks interest under the no-fault act on its judgment against Michigan Mutual. The trial court did not address this issue. MBPIA submits that it is entitled to interest under MCL 500.3142; MSA 24.13142. We disagree. That section of the no-fault act applies to judgments for personal protection insurance benefits, not to property protection benefits. The plaintiff’s prayer for interest under the no-fault act is denied. The plaintiff is, however, entitled to the normal statutory interest on judgments under MCL 600.6013; MSA 27A.6013.
Summary judgment is affirmed.
According to Desgrange’s deposition testimony, "[t]he exhaust [system] was rotting away” and one exhaust manifold was cracked. Because exhaust escaped before reaching the muffler, this caused the car to operate loudly. According to Desgrange, the system would likely fall off if not replaced.
"Headers” are special exhaust manifolds designed to relieve system pressure by eliminating sharp bends, rough castings, and other obstructions. Stockel, Auto Mechanics Fundamentals, p 465 (1978 ed). They are high-performance parts.
An added problem arises: the headers were less expensive than replacing the stock system. | [
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Per Curiam.
Defendants appeal as of right from the trial court’s order granting in part and denying in part plaintiffs’ motions for summary judgment, pursuant to GCR 1963, 117.2(3). Plaintiffs cross-appeal that portion of the court’s order which granted partial summary judgment, pursuant to GCR 1963, 117.2(3), in favor of defendants.
In an effort to regulate political campaign financing, the Legislature enacted the campaign financing and practices act (the act), MCL 169.201, et seq.; MSA 4.1703(1) et seq. The act provides misdemeanor and felony penalties for violation of its provisions. Under the terms of the act, the Secretary of State (Secretary) is under an express duty to promulgate rules and issue declaratory rulings in order to implement the act, in accor dance with the Administrative Procedures Act of 1969 (APA), MCL 24.201 et seq.; MSA 3.560(101) et seq. MCL 169.215(l)(e); MSA 4.1703(15)(l)(e).
The Secretary of State has not promulgated rules under the act. Rather, on July 1, 1980, the Secretary published a document entitled "Guidelines for Corporate Separate Segregated Funds”. The Secretary admits that the document was not promulgated as a set of rules or guidelines pursuant to the provision of the APA. Nevertheless, the document expounds on the prohibitions and requirements of the act with respect to corporate participation in Michigan elections. The Secretary announced his intention to enforce the act in conformity with the interpretations expressed in the document.
On September 2, 1980, plaintiffs commenced this action seeking "declaratory and injunctive relief’ against the Secretary of State and the Attorney General to prohibit any possible enforcement of the act pursuant to the Secretary’s interpretation as expressed in the so-called "guidelines”. Plaintiffs alleged their claim was within the jurisdiction of the circuit court under Const 1963, art 6, § 13; GCR 1963, 521, 718; MCL 600.601; MSA 27A.601. In their answer, defendants agreed that the cause was within the circuit court’s jurisdiction._
A circuit court is without jurisdiction to entertain an action against the State of Michigan unless that jurisdiction shall have been acquired by legislative consent. Greenfield Construction Co, Inc v Dep’t of State Highways, 402 Mich 172, 194; 261 NW2d 718 (1978). We are not convinced that the circuit court had jurisdiction to entertain plaintiffs’ claim in the instant case. Had the Secretary of State fulfilled his statutory obligation to promulgate rules in accordance with the procedures outlined in the APA, plaintiffs could have requested a declaratory ruling and, if such a ruling was not forthcoming, the validity of the Secretary’s rules could be determined in an action for declaratory judgment in circuit court, pursuant to MCL 24.264; MSA 3.560(164). If a declaratory ruling had been issued, the ruling would be binding on the Secretary and the party requesting the ruling. Such a binding ruling would be subject to judicial review, pursuant to MCL 24.263; MSA 3.560(163).
Since the document issued by the Secretary of State in the instant case was not promulgated as a set of rules or guidelines and was not issued as a declaratory ruling in response to a request of an interested person, the document is not binding on any party to this action. Plaintiffs cannot be convicted for violating the provisions of the document. Rather, a prosecution can be brought against plaintiffs only for violating the much more limited prohibitions of the campaign financing and practices act.
The absence of any rules, guidelines, or declaratory rulings binding on the parties prevents the judiciary from exercising jurisdiction over this cause. No legislative provision allows for an action against the state for the purpose of contesting the merits of an agency’s nonbinding interpretation of a statute. We decline to allow the defendants to confer jurisdiction on the courts by failing to raise the issue of lack of subject matter jurisdiction. Were we to review the merits of the Secretary’s interpretative document, our judgment would tend to serve as an improper substitute for the rules which the Secretary of State has been directed to promulgate.
The circuit court was without jurisdiction to entertain plaintiffs’ suit. Its order in this case is vacated and the case is dismissed.
The trial court’s order stated:
"Now therefore it is hereby declared, ordered, and adjudged with respect to 1976 PA 388, MCL 169.201 et seq. that plaintiffs’ motion for partial summary judgment be and the same hereby is granted as follows, and intervening plaintiffs’ motion for summary judgment is granted as set forth in subparagraph 4 below;
"1. A corporation may make expenditures for the establishment, administration and solicitation of contributions to a separate segregated fund sponsored by another corporation;
"2. A corporation may establish, maintain and administer more than one separate segregated fund, but such separate segregated funds may not comingle [sic] or transfer funds among or between one another.
"3. The Federal Election Campaign Act of 1971, being 2 USC 431 et seq. is preemptive of state law, 1976 PA 388, being MCL 169.201 et seq., as to the state law regulation of federal elections;
"4. A Michigan registered separate segregated fund may qualify, register, and at the same time be organized and operated as a federal political committee, to be regulated by the more restrictive of the two laws.
"5. A corporate separate segregated fund may engage in joint or combined fundraising activities with affiliated federal political committees.
"6. 1976 PA 388 contains no limitation upon the acceptance of unsolicited or unsolicitable contributions by a corporate separate segregated fund, so long as such contributions are otherwise lawful.
"It is further declared, ordered and adjudged that partial summary judgment for defendants and intervening defendant is hereby granted as follows:
"1. § 55 of Act 388 of the Public Acts of 1976 does not permit one separate segregated fund to make a contribution to or expenditure on behalf of another separate segregated fund.
"It is further declared, ordered and adjudged that defendants, their servants, agents and employees, are hereby permanently enjoined from enforcing Act 388 in a manner contrary to this judgment or taking any other action contrary hereto.”
In particular, the document interprets the act as prohibiting: the acceptance of unsolicited contributions by a corporate separate segregated fund (SSF); an SSF from making contributions to or expenditures on behalf of another SSF which is duly registered as an independent committee; corporations from paying the administrative and solicitation expenses of an SSF or independent committee other than its own; joint Michigan-federal SSFs; joint or combined fund-raising with affiliated federal SSFs; out-of-state contributors from making annual contributions to Michigan committees without themselves registering as Michigan political action committees; and corporations and their SSFs from making independent expenditures in assistance of, or in opposition to, the nomination or election of candidates for elective office. | [
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Per Curiam:.
Defendants pled guilty to charges of delivery of a controlled substance, cocaine, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), and conspiracy to deliver a controlled substance, MCL 750.157a; MSA 28.354(1). Defendants conditioned their pleas upon the preservation of their appellate rights with respect to certain legal and constitutional issues. Defendants appeal by right.
Since the prosecutor objected to the entry of the conditional pleas, the defendants first argue that their qualified guilty pleas were valid and entitle them to this Court’s consideration of the legal and constitutional issues raised in their appeal. There is currently a split in this Court regarding the validity of conditional pleas; the majority of the panels which have considered the issue have upheld such pleas. People v Thomas, 115 Mich App 586; 321 NW2d 742 (1982); People v Hubbard, 115 Mich App 73; 320 NW2d 294 (1982); People v McIntosh, 110 Mich App 139; 312 NW2d 415 (1981); People v Ricky Smith, 85 Mich App 32; 270 NW2d 697 (1978). Contra, People v Reid, 113 Mich App 262; 317 NW2d 589 (1982). We believe that the interests of judicial economy are best served by our recognizing the validity of a conditional guilty plea and deciding the issues raised on appeal.
Defendants next argue that an essential element of the offense of delivery of cocaine is proof that the substance delivered was not a synthetic product and that, absent such proof, they could not be convicted of delivering a schedule 2 controlled substance under MCL 333.7401; MSA 14.15(7401) and MCL 333.7214; MSA 14.15(7214). Defendants’ argument is frivolous. The statute listing controlled substances in schedule 2 clearly includes substances produced "independently by means of chemical synthesis”. MCL 333.7214(a); MSA 14.15(7214)(a).
Defendants also argue that an essential element of the offense of delivery of a controlled substance in an amount of 225 grams or more but less than 650 grams is a showing that at least each of 225 grams of the substance seized contained some of the illegal drug. This Court has already decided this issue against the defendants. In People v Prediger, 110 Mich App 757, 760; 313 NW2d 103 (1981), we held that the weight classifications found in MCL 333.7401(2)(a); MSA 14.15(7401)(2)(a) "refer to the aggregate weight of a mixture containing a controlled substance and not solely to the weight of a pure controlled substance”. Furthermore, this Court upheld these statutory weight classifications against an equal protection challenge in People v Lemble, 103 Mich App 220, 222; 303 NW2d 191 (1981), wherein we held that punishing defendants more severely for possessing greater amounts of "any mixture” containing a controlled substance was reasonable as the greater the quantity of mixture, whatever the degree of purity, the greater the potential for distribution and harm to society. See also People v Campbell, 115 Mich App 369; 320 NW2d 381 (1982).
Defendants next argue that the state’s regulation of cocaine unconstitutionally interferes with a citizen’s right to possess and use private property. This argument is without merit. People v Stout, 116 Mich App 726; 323 NW2d 532 (1982). The classification of cocaine as a controlled substance, because of its high potential for abuse, is clearly within the state’s police powers to protect the public health.
Lastly, the defendants argue that the classification of cocaine with narcotic drugs for purposes of punishment violates the right to due process and equal protection and constitutes cruel and unusual punishment. This Court has already decided these issues against the defendants’ position. People v Kaigler, 116 Mich App 567; 323 NW2d 486 (1982); Campbell, supra, pp 376-381.
Affirmed. | [
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D. C. Riley, P.J.
The facts of this case are adequately set forth in Judge Walsh’s opinion.
We are in agreement with Judge Walsh’s analysis of defendant’s challenge to the adequacy of the court’s jury instructions and therefore adopt it as our own. However, we find that the trial court erred in admitting evidence of defendant’s prior convictions for attempted breaking and entering.
Under proper circumstances, MRE 609 allows the introduction of evidence of prior convictions for impeachment purposes. MRE 609(a) provides as follows:
"(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination. ” (Emphasis added.)
The record reveals that the trial court failed to comply with MRE 609(a)(2) in that it made no mention of the factors it considered in determining that the probative value of admitting this evidence outweighed its prejudicial effect. The trial court’s fleeting reference to People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978), does not compel a different result. When ruling on defendant’s motion in limine, the trial court stated:
"The motion is denied. It is a matter within my discretion and based on the factors mentioned in People v Crawford, I will allow the prosecutor to inquire as to those felonies that we have mentioned.”
This conclusory statement is insufficient to satisfy the dictates of Crawford, supra. When ruling on such a motion, the trial court should note its discretion and the Crawford factors, as well as the factual circumstances supporting its decision. People v Barker, 97 Mich App 253, 256, fn 1; 293 NW2d 787 (1980); People v Joyner, 93 Mich App 554, 560-561; 287 NW2d 286 (1979).
Furthermore, the trial court’s statement,
"I believe that the jury knows that Mr. Johnson has committed so [sic] similar offenses on more than one occasion that he certainly might have the propensity for this type of crime and it would be more likely that he committed this one than he did not”,
leads us to believe that it erroneously weighed the second Crawford factor, i.e., similarity, in favor of admission and, therefore, defendant’s conviction is reversed.
Reversed.
N. J. Kaufman, J., concurred. | [
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Per Curiam.
On August 19, 1981, defendant pled nolo contendere to a charge of unarmed robbery, MCL 750.530; MSA 28.798, and was sentenced to from 7-1/2 to 15 years imprisonment. He appeals as of right.
GCR 1963, 785.7(3)(b)(ii) requires that the trial judge conduct a hearing to establish the factual basis for a defendant’s no contest plea. In the present case, the parties stipulated that the judge be allowed to use the police report to establish the factual basis. Defendant now argues that the trial court erred in using the police report to provide the factual basis. He claims that the court had a personal responsibility to conduct the hearing and to ensure the fact-finding procedure’s integrity.
In People v Chilton, 394 Mich 34, 37-38; 228 NW2d 210, 211 (1975), the Supreme Court unanimously ruled that a trial judge could use a preliminary examination transcript to supply the factual basis:
"If a defendant were compelled by direct testimony to provide the factual basis to convince a court that he had committed a crime, his plea, regardless of the label attached, would be a guilty plea. A nolo contendere plea by its nature prohibits an examining magistrate from eliciting from the defendant the requisite factual basis to support a nolo plea. But this does not relieve the magistrate from establishing a sufficient basis. It simply means that basis must be established via another medium.” (Footnote omitted.)
See also People v Knight, 94 Mich App 526; 288 NW2d 649 (1980); People v Michelle, 69 Mich App 389; 245 NW2d 59 (1976).
Usually, a court allows a defendant to plead no contest rather than guilty to allow him to avoid making an admission. People v Sickmiller, 87 Mich App 332; 274 NW2d 57 (1978). In the present case, the court allowed defendant to plead no contest because defendant’s memory had been somewhat impaired thus making him unable to sufficiently state the facts.
In People v Maciejewski, 68 Mich App 1; 241 NW2d 736 (1976), this Court held that the trial judge properly established a factual basis through a police officer’s hearsay testimony. We believe that the present case is similar. The trial court obviously could not have elicited the factual basis from defendant himself. Because both parties stipulated that the police report could establish the factual basis, we believe that the trial judge did not err in conducting his hearing in that way. We would be far more concerned about such a hearing if defendant had, instead, objected. See People v Fields, 71 Mich App 232; 247 NW2d 362 (1976) (T. M. Burns, J., dissenting.)
In return for defendant’s pleading no contest, the prosecution agreed that it would not recommend any sentence to the judge. At defendant’s sentencing, the prosecutor stated the following: "Your Honor, the People would simply concur with the recommendation of prison from the Probation Department”. This case is directly controlled by the unanimous decision in Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971). There, the defendant pled guilty in return for the prosecutor’s making no recommendation at sentencing. However, the prosecutor recommended the maximum penalty. The Supreme Court vacated the sentence and remanded the case. The prosecutor’s attempt to distinguish the Santobello case by claiming a difference between recommending the maximum and following the probation report is spurious. Therefore, we are remanding this case for a new sentence. At that time, the prosecutor is not to make any sentence recommendation. The parties will be held to their bargain. Under the circumstances of this case, since defendant is not asserting innocence and is merely complaining that the prosecution did not keep its part of the bargain, we are persuaded that specific performance rather than allowing the defendant to withdraw the plea is the proper remedy. People v Stevens, 45 Mich App 689; 206 NW2d 757 (1973); People v Eck, 39 Mich App 176; 197 NW2d 289 (1972).
Defendant lastly argues that he should be allowed to withdraw his plea because he received nothing of value in the plea bargain. We disagree. A promise to remain silent is a valuable consideration. As such, the bargain was not illusory.
Defendant’s conviction is affirmed. This case is remanded for a resentencing to be conducted in accordance with this opinion. | [
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Per Curiam.
Defendant pled guilty to a charge of larceny in a building, MCL 750.360; MSA 28.592, and was sentenced to 32 to 48 months imprisonment with one day of credit. After defendant pled guilty, but before he was sentenced, defendant was incarcerated on an unrelated Texas parole violation. At sentencing, the defendant requested that the trial court give him credit for time served on the parole violation charge. The court denied the request and defendant appealed.
The Michigan credit statute, MCL 769.11b; MSA 28.1083(2), provides:
"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.”
Defendant contends that the statute entitles him to receive credit for the time he served on the Texas parole violation charge even though it was unrelated to the offense for which he was sentenced. We must decide, therefore, whether the statute entitles a defendant to credit for time served on such an unrelated charge.
The panels of this Court have taken three positions on this question. The most strict approach allows credit only for time served on the charge for which the defendant is sentenced. See, e.g., People v Finn, 74 Mich App 580; 254 NW2d 585 (1977). The intermediate view allows credit for the defendant’s confinement on a related offense. See, e.g., People v Tilliard, 98 Mich App 17; 296 NW2d 180 (1980); People v Face, 88 Mich App 435; 276 NW2d 916 (1979); People v Groenevel, 54 Mich App 424; 221 NW2d 254 (1974), lv den 393 Mich 814 (1975). The most liberal view interprets the statute as entitling a defendant to credit for time served on an unrelated charge. People v Coyle, 104 Mich App 636; 305 NW2d 275 (1981); People v Potts, 46 Mich App 538; 208 NW2d 583 (1973), lv den 391 Mich 833 (1974).
We feel that the liberal view is the better reasoned position. The purpose of the statute is to free a defendant who exercises his right to trial— but who cannot furnish a bond — from serving more time than a defendant who pleads guilty soon, after arraignment. People v Coyle, supra; People v Chattaway, 18 Mich App 538; 171 NW2d 801 (1969). Absent the statute, a defendant who is unable to furnish a bond would be encouraged to plead guilty and begin his sentence immediately. The statute is intended to eliminate this chilling effect on the exercise of the right to trial. People v Coyle, supra; People v Chattaway, supra. The danger of a chilling effect is present where the defendant cannot furnish a bond and gain his release because he is incarcerated on an unrelated charge. Therefore, the statutory purpose is effectuated by granting credit for time served on an unrelated charge. See People v Coyle, supra, p 650.
In the case at bar, the defendant was confined on an unrelated parole violation charge. The sentencing court should have given the defendant credit for time served on that charge when it sentenced defendant on his conviction for larceny in a building.
The case is remanded to the trial court to determine the number of days defendant spent confined on the parole violation charge prior to sentencing on this conviction for larceny in a building. After making such a determination, the court shall amend the defendant’s sentence to be consistent with this opinion. | [
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Per Curiam.
The Michigan Liquor Control Commission appeals by right from a circuit court order which held that 1979 AC, R 436.1105(3) was an unconstitutional delegation of the commission’s powers and which remanded the application of Bernard Gene Allen and Sandra L. Allen for a SDM liquor license to the commission for further consideration.
1979 AC, R 436.1105(3) provides:
"An applicant for a new license, or for a transfer of location of an existing license, shall be denied if the commission is notified in writing that the applicant does not meet all appropriate state and local building, plumbing, zoning, fire, sanitation, and health laws and ordinances as certified to the commission by the appropriate law enforcement officials.”_
We need not decide here whether the commission may delegate its powers to a local government unit, because the rule involves no delegation of the commission’s powers. A township’s power to enact such ordinances as those mentioned in the rule is not derived from the commission, but rather from Const 1963, art 7, § 17, and from legislation such as MCL 41.2 et seq.; MSA 5.2 et seq. and MCL 125.271 et seq.; MSA 5.2963(1) et seq. It is well settled that local government units may exercise their police powers to regulate the liquor business, subject to the commission’s authority when a conflict arises. Johnson v Liquor Control Comm, 266 Mich 682; 254 NW 557 (1934); Mallach v Mt Morris, 287 Mich 666; 284 NW 600 (1939); Mutchall v Kalamazoo, 323 Mich 215; 35 NW2d 245 (1948); Oppenhuizen v Zeeland, 101 Mich App 40; 300 NW2d 445 (1980). The rule at issue here merely recognizes this power of local government units. 101 Mich App 48.
In Chesapeake & Ohio R Co v Public Service Comm, 59 Mich App 88, 98-99; 228 NW2d 843 (1975), the Court held:
"Where an agency is empowered to make rules, courts employ a three-fold test to determine the validity of the rules it promulgates: (1) whether the rule is within the matter covered by the enabling statute; (2) if so, whether it complies with the underlying legislative intent; and (3) if it meets the first two requirements, when it is neither arbitrary nor capricious.”
The commission is empowered to make rules by MCL 436.7; MSA 18.977. In view of the authorities discussed above, we cannot say that the rule is not within the matter covered by the enabling statute or does not comply with the underlying legislative intent. It is not arbitrary or capricious for the commission to decline to grant a license to applicants who, because of valid local ordinances, will be unable to use a license. Even assuming that the commission has the power to determine whether a local ordinance is valid or whether applicants have complied with a local ordinance, it is not arbitrary or capricious for the commission to require applicants to litigate such questions in the courts. There is no reason to burden the commission’s docket with such collateral matters in which the commission and its staff have no particular expertise. We refer the applicants’ attention to the procedures followed in Oppenhuizen v Zeeland, supra, 42-43.
In view of the foregoing, we need not discuss the other issues raised by the parties. Our decision is not to be construed as an expression of opinion on the merits of the applicants’ challenge of the validity of the Heath Township ordinance at issue.
Reversed. | [
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Per Curiam.
Resolution of two issues, common to the three cases consolidated herein, mercifully will bring to an end two and one-half years of controversy extending over six cases involving the collection and distribution of some $23 million in special taxes collected in the tri-county area on behalf of the Southeastern Michigan Transportation Authority (SEMTA), and currently held in escrow under a prior order of this Court. The issues are: (1) Is 1982 PA 56, enacted by the Legislature and given immediate effect upon its signing by the Governor April 6, 1982, constitu tional? (2) If so, is it retroactive? If both questions are answered by this Court in the affirmative, the sums collected and held in escrow may be distributed to SEMTA. But first, a brief history of the litigation is necessary.
Prior Litigation
In 1980, the Attorney General issued OAG, 1979-1980, No 5737, p 865 (July 11, 1980), holding that § 16a, 1976 PA 266, as amended by 1980 PA 89, MCL 124.416a; MSA 5.3475(116a), which authorized the collection of special taxes on motor vehicles in the tri-county area, was unconstitutional and void. Upon receiving the opinion, the Secretary of State ordered that collection of the taxes cease. However, in Southeastern Michigan Transportation Authority v Secretary of State, 104 Mich App 390; 304 NW2d 846 (1981) (SEMTA I), this Court held that the statute was not unconstitutional on its face and that the Secretary of State should continue to collect the fees imposed, but that the fees were to be placed in escrow until the Legislature amended the statute to assure that no more than 10% of sums collected from two funds would be distributed for comprehensive transportation purposes consistent with Const 1963, art 9, § 9. The Court did not tell the Legislature what to do but suggested that the Legislature might amend the statute so that there would be one fund into which all motor vehicle taxes be placed and from which disbursements not exceeding 10% could be made.
July 15, 1981, the Secretary of State filed an original action for mandamus, seeking to have this Court determine that the power to collect such special taxes expired either on November 15, 1980 (because a written merger agreement between SEMTA and the transportation system of the City of Detroit, as intended by the Legislature, had not been signed), or on April 16, 1981 (because such merger had not taken place). In Secretary of State v State Treasurer, 113 Mich App 153; 317 NW2d 238 (1982) (SEMTA II), this Court split three ways on when and if the tax expired. Judge Michael J. Kelly was of the opinion that the tax terminated April 16, 1981. Visiting circuit judge J. J. Kelley held that the tax terminated November 15, 1980, but, because he felt the power to levy the taxes had already expired, joined Judge Michael J. Kelly in holding the expiration date was April 16, 1981. Judge Allen wrote that he felt that the power to tax had not expired at all and that the expiration date should be left to the Legislature to clarify. SEMTA II was decided January 27, 1982. An application for leave to appeal to the Supreme Court was promptly filed by SEMTA.
While the appeal in SEMTA II was pending, proceedings in SEMTA III (No. 63872) and SEMTA IV (No. 65164) were filed. In SEMTA III, a writ of mandamus directing the distribution of $2.4 million was sought, such sums representing SEMTA’s share of taxes placed in escrow for the period July 30, 1980 (the date when the taxes were first es-crowed), through November 15, 1980 (the earliest date on which one judge in SEMTA II concluded the tax expired). By stipulation the parties agreed to the release of the $2.4 million principal but without interest. On July 7, 1982, this Court entered an order directing disbursement to SEMTA of $2.4 million, without interest, and disbursement of collection expenses to the Secretary of State. That order terminated SEMTA III which is now a closed case.
In SEMTA IV claim was made for accrued interest on the sums which were released in SEMTA III. On July 12, 1982, this panel ordered the Department of Treasury to show cause why accrued interest in the amount of $591,228.07 should not be distributed to SEMTA and why the amount of $6,320.82, representing interest earned on the collection expenses incurred by the Secretary of State, should not be distributed to the Secretary of State. On August 12, 1982, an order was entered directing the State Treasurer to disburse such sums to SEMTA and the Secretary of State, respectively. For practical purposes, SEMTA IV is a closed case.
Meanwhile, on April 6, 1982, the Legislature passed and the Governor signed 1982 PA 56. That act, which was given immediate effect, provided for the continuation of the SEMTA taxes until December 31, 1982, specified a formula to assure that not more than 10% of certain motor vehicle fees would be distributed for mass transportation purposes (thus eliminating the objection raised to disbursement in SEMTA I), and eliminated the provisions relative to merger between SEMTA and the transportation system of the City of Detroit. On August 10, 1982, the Supreme Court, in lieu of granting leave to appeal in SEMTA II, vacated the judgment in Semta II and remanded the case back to the Court of Appeals "for reconsideration in light of 1982 PA 56”. Secretary of State v State Treasurer, 414 Mich 874 (1982).
July 29, 1982, SEMTA V (No. 65884) was filed asking this Court to issue a writ of mandamus directing the Department of Treasury to disburse $18.7 million in funds escrowed from November 15, 1980 (the last date of disbursement in SEMTA III) to April 6, 1982 (the date 1982 PA 56 became effective). On August 10, 1982, the same date that the Supreme Court remanded SEMTA II to this Court for reconsideration, SEMTA VI (No. 66087) was filed seeking mandamus for $2.9 million in funds placed in escrow from April 6, 1982, to June 30, 1982. On November 5, 1982, SEMTA enlarged upon this request by asking for an additional $2.1 million for the period June 30, 1982, to September 30, 1982, September 30 being the end of the last quarter for which payment is due SEMTA under 1982 PA 56. On September 10, 1982, this Court ordered SEMTA V SEMTA VI, and SEMTA II (On Remand) consolidated, and on October 8, 1982, granted the parties the opportunity to file additional briefs and pleadings. SEMTA and the Attorney General on behalf of the Secretary of State elected to stand on the briefs and pleadings already filed. The Oakland County Road Commission (OCRC) filed additional briefs and pleadings claiming: (1) In SEMTA VI, plaintiff was not entitled to funds escrowed prospectively from April 6, 1982, because 1982 PA 56 was in violation of Const 1963, art 9, § 9; (2) In SEMTA V, plaintiff was not entitled to escrowed funds from November 15, 1980, to June 6, 1982, because 1982 PA 56 was not retroactive; (3) In SEMTA II (On Remand), because 1982 PA 56 was not retroactive, the majority opinion in SEMTA II should be affirmed. With this factual background in mind, we address the three pending cases.
SEMTA VI
SEMTA VI is the least complex of the three cases since no question of retroactivity is involved. The issue is simply whether this Court should order the release to SEMTA and the Secretary of State of fees collected and held in escrow from the date 1982 PA 56 was enacted, April 6, 1982, to September 30, 1982. The Attorney General in his brief on behalf of the Department of Treasury dated August 30, 1982, stated that he had no objection to release of the then estimated $2.9 million providing that any order under which that sum would be released would contain language that the amount released be subject to verification of the computation of the figures and a determination of compliance with the provisions of Const 1963, art 9, § 9.
However, intervening defendant OCRC objected to any disbursement of funds collected pursuant to 1982 PA 56 on grounds that the statute is in violation of Const 1963, art 9, § 9. Specifically, OCRC claims that 1967 PA 204, as most recently amended by 1982 PA 56, does not contain the constitutional language demanded by Const 1963, art 9, § 9, that the monies collected be restricted to conventional road-building and maintenance purposes or to comprehensive transportation purposes. However, 1982 PA 56 is an amendment of 1967 PA 204, § 16a, which was the statute authorizing the creation of SEMTA. In the absence of a statement to the contrary, the funds derived pursuant to 1982 PA 56 must be spent according to the statute authorizing the creation and operation of SEMTA. 1967 PA 204, § 3, sets forth the powers of a SEMTA type authority. It provides:
"Sec. 3. Authorities created under this act shall plan, acquire, construct, operate, maintain, replace, improve, extend and contract for public transporation facilities. An authority is a public benefit agency and instrumentality of the state with all the powers of a public corporation, for the purpose of planning, acquiring, constructing, operating, maintaining, improving and extending public transportation facilities, and for controlling, operating, administering and exercising the franchise of such transportation facilities, if any, including charter operations as acquired.” MCL 124.403; MSA 5.3475(103). (Emphasis supplied.)
A further indication that the funds collected under 1982 PA 56 are in fact restricted to comprehensive transportation purposes is found in 1982 PA 56, § 16a(3), which provides in part that the special taxes shall be returned "to the authority in which a transportation district has been created”. Since "transportation districts” were created in 1967 PA 204, which in turn provides that monies received by such districts must be used for public transportation purposes, we find no violation of Const 1963, art 9, § 9.
Additionally, the identical argument now made by OCRC for the unconstitutionality of 1967 PA 204, § 16a, was made by the Attorney General in OAG 1979-1980, No 5737, supra. That argument was rejected in this Court’s opinion in SEMTA I, 104 Mich App 397-398. Although § 16a has since been amended by 1982 PA 56, the pertinent part of 1982 PA 56 reads no differently than the former relevant portions of 1980 PA 89. Paragraph (2) of both acts provides that financing under the act is to be used for "the acquisition or improvement of public transportation facilities in a transportation district, and operating the facilities”.
We find no violation of Const 1963, art 9, § 9 and, accordingly, perceive no reason why funds escrowed prospectively from April 6, 1982, may not be released to SEMTA together with interest, as provided in § 16a(3) of 1982 PA 56. The necessary expenses for collection shall be returned to the Secretary of State. Since the statute mandates that said sums "shall be returned on a quarterly basis”, and since the last quarter period ended September 30, 1982, all sums held in escrow less expenses of collection from April 6 through September 30, 1982, shall be disbursed. The estimated amount of distribution to SEMTA for this period is $5 million. An order distributing such sums was issued by this Court December 3, 1982.
SEMTA V and SEMTA II (On Remand)
Since the question of retroactivity controls our decision in each of these cases, the cases may be considered together. As noted earlier, the question involved in SEMTA V is whether some $18.8 million in funds collected between November 15, 1980, and April 6, 1982, and held in escrow, should be distributed to SEMTA or should be returned to the persons paying the tax. The question in SEMTA II (On Remand) is whether the majority decision holding that the tax expired April 16, 1981, and that any sums collected thereafter should be returned to the persons paying the tax, should be affirmed. Since 1982 PA 56 eliminated § 16a(5) of the former act which required a written merger agreement between SEMTA and the Department of Transportation of the City of Detroit no later than November 15, 1980, and also eliminated § 16a(6) which required an actual merger of the two systems by April 16, 1981, and inserted new language that the SEMTA taxes would continue until December 31, 1982, the determinative issue is whether 1982 PA 56 is retroactive.
Intervening defendant, OCRC, argues that the new statute cannot be retroactive because this Court, on January 27, 1982, held that the statute authorizing the collection of the special SEMTA taxes had expired and that a tax which has expired and which is already dead in January cannot be resurrected by a statute enacted some two months later on April 6, 1982, Great Scott Supermarkets, Inc v Dep’t of Treasury, 113 Mich App 679, 683-684; 318 NW2d 537 (1982). Similarly, but for different reasons, the Attorney General, in his briefs on behalf of the Department of Treasury in SEMTA V, argues that the new statute is not retroactive. Quoting from 2 Sutherland, Statutory Construction (4th ed), § 41.04, pp 252-253, that a law will not be declared retroactive unless the act by express language, or necessary implication, indicates the Legislature intended a retroactive application, the Attorney General contends that 1982 PA 56 is not clearly retroactive but merely attempts to revive, effective April 6, 1982, that which was already dead. We are not persuaded.
The initial flaw in the arguments advanced is the assumption that this Court’s opinion in SEMTA II rendered the former statute dead. This Court’s opinion was not a final adjudication of the case. People v George, 399 Mich 638, 640; 250 NW2d 491 (1977). This Court’s order in SEMTA II would not become a final order until the Supreme Court denied the pending application for leave to appeal. When the Supreme Court entered its August 10, 1982, order in SEMTA II, it vacated this Court’s judgment that the power to tax expired April 16, 1981.
Secondly, it appears more likely that 1982 PA 56 was the legislative response to the suggestion expressed in the minority opinion in SEMTA II that the Legislature use HB 5307, which had passed the House and had been sent to the Senate, as a vehicle for clarifying the Legislature’s intent as to the expiration date of 1980 PA 89, the same being the predecessor of 1982 PA 56. HB 5307 passed the Senate and upon enrollment became 1982 PA 56. The Legislature is presumed to know the existing law and the decisions of this Court interpreting it. People v Harrison, 194 Mich 363; 160 NW 623 (1916). Given the fact that three judges versed in the law could come to three different opinions as to the expiration date of the taxes in 1980 PA 89, and one of the judges asked for clarification from the Legislature, it is not unreasonable to assume that 1982 PA 56 was the legislative clarification that the authority to tax had not expired and a new termination date of December 31, 1982, would be established.
Assuming, arguendo, that 1982 PA 56 is not a clarification, we find that, by necessary implication, the new statute connotes a legislative intent to apply the new statute retroactively. Old subsections 16a(5) and 16a(6) of 1980 PA 89 were deleted and subsection 16a(2) was amended to read:
"(2) Effective April 15, 1977, and ending December 31, 1982, in addition to other methods provided in this act for financing the acquisition or improvement of public transportation facilities in a transportation district, and operating the facilities, there shall be imposed the following”.
The language in regular type is the language which was continued from 1980 PA 89. The language in italic type is the new language added by 1982 PA 56.
If the Legislature had wanted the new statute to apply only prospectively, it would have been so much simpler to have changed the initial line quoted above so that it would read: "From the date this Act is signed and becomes law, and ending December 31, 1982, * * That the Legislature did not do so reveals to us a legislative intent to make the act retroactive. Thus, whether the new statute is viewed more as a clarification of a patent existing ambiguity, and we are persuaded it is such, or whether it is considered a retroactive application by the Legislature, in either event, the power to tax did not expire on either November 15, 1980, or April 16, 1981, and the estimated $18.7 million accumulated between November 15, 1980, and April 6, 1982, plus interest, shall be returned to SEMTA less expenses of collection with interest thereon which shall be returned to the Secretary of State.
Finally, intervening defendant OCRC argues that 1982 PA 56 when applied retroactively is unconstitutional because of being in violation of Const 1963, art 4, § 24, which provides in part that no law shall embrace more than one object which shall be embraced in its title. It is intervening defendant’s argument that, since the title of the Metropolitan Transportation Authorities Act, 1967 PA 204, does not contain any mention of retroactive application to be given 1982 PA 56, to give retroactive application to 1982 PA 56 would be a violation of the constitutional prohibition against a law embracing more than one object which shall be expressed in its title.
This argument has no merit since the constitutional provision in question is not construed so narrowly. Midland Twp v State Boundary Comm, 401 Mich 641, 655; 259 NW2d 326 (1977).
We commenced this opinion by raising two questions and stating that if the answer to each was in the affirmative the sums collected and presently held in escrow should be distributed to SEMTA. We have answered each question in the affirmative, though on the second question we believe 1982 PA 56 is more in the nature of clarification than a retroactive application. Accordingly, judgment is entered as follows:
1. In No. 65884 (SEMTA V) a writ of mandamus may issue directing the State Treasurer to disburse to SEMTA the approximate $18.7 million in funds escrowed from November 15, 1980, to April 6, 1982, plus interest, less necessary expenses of collection which, together with interest thereon, shall be disbursed to the Secretary of State.
2. In No. 66087 (SEMTA VI) the writ of mandamus requesting disbursement of funds accumulated prospectively from April 6, 1982, is approved in principle, but issuance thereof is moot by reason of this Court’s order issued December 3, 1982, distributing SEMTA taxes escrowed, plus interest thereon, from April 6 through September 30, 1982, that being the last date of disbursement required by the statute. See fn 3 supra.
3. In No. 66129 (SEMTA II On Remand), the judgment granting mandamus entered by this Court in Secretary of State v Dep’t of Treasury, 113 Mich App 153; 317 NW2d 238 (1982), is vacated and set aside. In lieu thereof, judgment denying mandamus is entered.
No costs, a question of public importance being involved.
The precise amount due SEMTA agreed upon for the period April 6 through June 30, 1982, was $2,944,895, plus $108,572 to the Secretary of State for collection expenses. The estimated amount due SEMTA for the quarter July 1 — September 30, 1982 (as requested in SEMTA’s motion to accelerate filed November 5, 1982) was $2.1 million, making a total request for an accelerated distribution of $5 million.
"OAG 1980, No 5737 (July 11, 1980) held that § 16a was unconstitutional on two grounds: * * * (2) there was an absence of any requirement that the revenues from the taxes imposed be used in accordance with the limitations of Const 1963, art 9, § 9.” SEMTA I, 104 Mich App 397.
The order of distribution issued in SEMTA II (On Remand) December 3, 1982, did not use the figure $5 million. Instead, the Court ordered the State Treasurer to disburse to SEMTA taxes escrowed, including interest thereon, from April 6 through September 30, 1982, less collection expenses, including interest, to be disbursed to the Secretary of State. | [
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] |
Per Curiam.
Arthur Lee Harbison appeals as of right from a circuit court order affirming a decision of the Secretary of State, pursuant to MCL 257.625(f); MSA 9.2325(6), to suspend his driver’s license for six months for an unreasonable refusal to take a breath-analysis test. He claims that the decisions of the circuit court and the Secretary of State were inconsistent with the rule stated by this Court in People v Castle, 108 Mich App 353; 310 NW2d 379 (1981).
In Castle, the defendant initially refused to take the test without first consulting with his attorney. The attorney arrived at the police station 70 minutes later and, after consulting with the defendant, requested that a breath-analysis test be administered. Relying on a standard departmental policy, the police refused to administer a test because it had not been requested within one hour of the initial refusal. Defendant had not previously been informed of this policy. This Court held, at 108 Mich App 357:
"Pursuant to the statute, any person charged with driving a vehicle while under the influence of intoxicating liquor shall be informed: (1) he has a right to demand a test, (2) if he takes a chemical test administered at the request of a police officer he may have a person of his own choosing administer a test, (3) he has the option to take only the breath test, and (4) he has a right to refuse the test and the consequences of such a refusal.
"We are guided by these statutory requirements to hold that any person charged with duil must be informed of police regulations and rules, if any, that materially affect him to insure that the accused has an opportunity to make an informed decision. This is particularly so when one considers the impact of the choice and the fact that the person arrested does not have the assistance of. counsel in deciding whether to submit to a test. See Holmberg v 54-A Judicial Dist Judge, 60 Mich App 757; 231 NW2d 543 (1975).
"In this case, defendant was deprived of the opportunity to make a knowing choice of whether to submit to the test when police failed to inform him timely of material departmental policy. We do not intimate an opinion in this decision as to the propriety of the departmental policy. We do say that police policy which prohibits a defendant from demanding a chemical test after a prescribed time must first be explained to the defendant, enabling him to make an informed decision.” (Emphasis added.)
Here, as in Castle, the department had a policy of not administering a breath-analysis test if it was not requested within one hour of an initial refusal. It is not disputed that Harbison was not informed of this policy.
Even though Harbison thought that once he refused to take the test he could not change his mind, the police were under the obligation to tell him of department policies. In fact, it is more than likely that, after thinking it over and after the initial trauma of arrest, he would have decided to change his mind.
Reversed. | [
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Per Curiam.
Petitioner’s driver’s license was suspended by the Secretary of State for one year after he refused to submit to a Breathalyzer test pursuant to the implied consent provision of the Michigan Vehicle Code, MCL 257.1 et seqMSA 9.1801 et seq. Petitioner appeals as of right from the circuit court’s denial of his petition for restoration of driving privileges. Petitioner contends that the circuit court should have restored his driving privileges because the hearing which resulted in the suspension of his driver’s license was not held in a timely fashion. Petitioner had requested an implied consent hearing after he received a "Notice of Receipt of Written Report of Refusal to Submit to Chemical Test for Alcohol * * The Driver License Appeal Division received petitioner’s request on May 15, 1984, and a hearing was held on July 26, 1984, 72 days later.
Petitioner does not argue the reasonableness of the time period in which the hearing was held, but rather argues that he was entitled under Administrative Code Rule 257.33, 1979 AC, R 257.33, to have the hearing within 30 days. We must decide whether Rule 257.33 should be read to incorporate the statute, MCL 257.625f; MSA 9.2325(6), as it read when the rule was promulgated or as it read at the time of the hearing, pursuant to the 1980 amendment. If the rule should incorporate the statute as it existed in 1976, petitioner was entitled to a hearing within 30 days from the date his request for hearing was received, and he should prevail on this appeal. If, on the other hand, the rule should incorporate the statute as amended by 1980 PA 515, petitioner was entitled only to a hearing "within a reasonable time” after his request for hearing was made, and petitioner should not prevail. We believe the rule should be construed so as to incorporate the statute as it read at the time of the hearing, i.e., to require a hearing within a reasonable time.
MCL 257.625f(l)-(4); MSA 9.2325(6)(l)-(4) authorizes the secretary to suspend the driver’s license of any person arrested for operating a motor vehi cle under the influence of liquor or while impaired who refuses to take a chemical test on request. However, before the secretary may act on such a refusal, a driver is afforded the right to request a hearing before the Driver License Appeal Division.
Administrative Code Rule 257.33, 1979 AC, R 257.33, which became effective in November of 1976, provides:
"(1) After a timely and proper request for hearing, the administrator shall schedule a hearing to be held within a reasonable time, except as provided by section 625f of the act. ” (Emphasis added.)
At the time this rule was promulgated, § 625f of the code, MCL 257.625f; MSA 9.2325(6), provided, in part:
"(2) If a hearing is requested, the department shall hold such hearing within 30 days of receipt of such request in the same manner and under the same conditions as provided in section 322.” (Emphasis added.)
Section 625f was amended in 1980, by 1980 PA 515. Subsection 2 of the amended section deleted the requirement that the hearing be held within 30 days of receipt of the request for a hearing:
"(2) If a hearing is requested, the secretary of state shall hold the hearing in the same manner and under the same conditions as provided in section 322. * *
We find § 31 of the Administrative Procedures Act, MCL 24.231; MSA 3.560(131), controlling. Subsection 5 of that section provides:
"(5) A rule may be amended or rescinded by another rule which constitutes the whole or a part of a filing of rules or as a result of an act of the legislature.”
In Henderson v Memphis Community School Dist, 57 Mich App 770, 776; 226 NW2d 725 (1975), this Court noted with respect to this section:
"[W]e interpret [MCL 24.231(5); MSA 3.560(131X5)] as an exercise of the legislative authority to modify or abrogate administrative rules if it so desires. The Legislature would have to act speciñcally to alter or rescind an administrative rule * * (Emphasis in Henderson.)
We believe that in the instant situation the Legislature specifically altered Rule 257.33 by amending § 625f to delete the requirement that the hearing be scheduled within a specific period of time.
The secretary points out that this Court, in construing a statute or rule, may look to extrinsic factors, including bill analyses, to determine legislative intent. Bennetts v State Employees Retirement Board, 95 Mich App 616; 291 NW2d 147 (1980). The secretary contends that the intent of the Legislature can be gleaned from the analysis of House Bill 5040, which later became § 625f of 1980 PA 515. The bill analysis states, in pertinent part:
"Presently, a hearing requested by a person arrested for driving under the influence of liquor who refused to submit to a chemical test must be held within 30 days after the request is made. However, around 25-30 percent of these hearings are rescheduled at a later date at the request of the person’s attorney or because the person wishes to delay the hearing until he or she is tried for driving under the influence of liquor. Furthermore, in some rural areas of the state, hearing officers currently spend a considerable number of hours going from place to place to hold one or two hearings at a time. By removing the requirement that such hearings be held within 30 days, House Bill 5040 would enable the Department of State to schedule hearings in a more efficient manner.”
It appears to this Court that the Legislature recognized that the secretary needed more than 30 days to schedule and conduct implied consent hearings and that the Legislature therefore amended § 625f to enable the department to schedule hearings in a more efficient manner. We thus conclude that Rule 257.33 was amended as a result of an act of the Legislature.
In addition, in construing a statute or rule this Court should accord great deference to the state agency’s interpretation of that statute or rule. Magreta v Ambassador Steel Co, 380 Mich 513; 158 NW2d 473 (1968). While not part of the record, the secretary indicates in his brief that for the past four and a half years he has interpreted the 1980 amendment of § 625f to remove the 30-day limit on implied consent hearings and has been conducting hearings within a reasonable time.
We believe that this is the most reasonable construction of the rule.
The lower court’s order denying petitioner’s restoration of driving privileges is affirmed. | [
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Kelly, J.
Appellant presents one question:
“Does the motor vehicle code require knowledge or scienter on the part of the owner or lessee of an overloaded vehicle to support the prosecution of such person under CLS 1961, § 257.724(c) as amended by PA 1964, No 222 (Stat Ann 1965 Cum Supp § 9.2424)¶”
The Court of Appeals answered this question in the affirmative and appellant claims the Court erred because it concluded “that it is necessary to read section 716 together with sections 722 and 724 in order to arrive at the proper construction of the statute relative to the need for knowledge of the violation of the weight provisions set forth in section 722.”
These three sections of the motor vehicle code to which appellant refers are set forth in the Court of Appeals’ decision, reported in 3 Mich App 618.
In People v. Ward (1961), 364 Mich 671, a warrant was issued accusing defendant of guilt under the presently considered section 724 of the Michigan motor vehicle code. This Court granted leave to appeal from the trial court’s order granting defendant’s motion to quash.
The syllabus in People v. Ward, supra, reads:
“Automobiles — Overloaded Equipment — Equally Divided Court.
“Order quashing complaint against lessee of overloaded truck that was operated upon the public highway in violation of statute is affirmed by an equally divided court (CLS 1956, § 257.724).”
The question appellant asks this Court to answer in the present appeal is similar to the question that failed to obtain a majority answer by those members of the Court who participated in the People v. Ward decision six years ago.
The reasons for the division in People v. Ward are ably set forth in two opinions by two present members of this Court.
"We conclude that the motor vehicle code does “require knowledge or scienter on the part of the owner or lessee of an overloaded vehicle to support the prosecution of such person under CLS 1961, § 257.724(c) as amended by PA 1964, No 222,” and, therefore, the judgment of the Ingham circuit court and of the Court of Appeals is affirmed. No costs.
Dethmers, C. J., and T. M. Kavanagh, Adams, and Brennan, JJ., concurred with Kelly, J. | [
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O’Hara, J.
Leave was granted in this case to review a Court of Appeals affirmation of a circuit court entry of summary judgment as to all defendants except Ralph Banfield. Plaintiff is the appellant here.
The controversy arises out of claimed offers and alleged acceptances of offers to purchase realty in Livingston county, Michigan. All of the purported contractual commitments were oral and on their face were void under the statute of frauds. Appellant denies the statute controls.
' Coronet Development Company is a Michigan corporation.
F.S.W., Inc.., is a Louisiana corporation, apparently named for its incorporator F. S. Weis. Mrs. Fred Weis is his widow. By her husband’s will she is the controlling stockholder in F.S.W., Inc. She is a resident of Louisiana. Paul Godchaux, Jr., and Leon Godchaux are individuals, corporate officers of Weis, Inc., and executors of the Succession of Mr. Weis. They are residents of Louisiana. Ralph Banfield is a resident of Livingston county, Michigan.
The long and short of the claims of the parties may be thus summarized. The organizers of Coronet learned of the defendant corporation’s ownership of land' in -Livingston county which they deemed desirable for purchase for subdividing. Originally in person, and later by attorney, they offered $175,000 for the property. According to them the offer was' orally.abcepted by the Godchaux acting for the corporation. No written acceptance was ever executed. Plaintiff claims that this was not clone at the behest of defendants because of .claimed Federal tax advantage to them and that they were assured by defendants the agreement would be fully as binding as though written as required by statute. Plaintiff assigns this reason, as well as alleged part performance, to take the case out of the statute. After the claimed oral acceptance the plaintiffs contend that the Godchaux, acting now, not as corporate officers, but as fiduciaries of the deceased Mr. Weis’ estate, advis'ed them that the civil district court of the parish of Orleans, Louisiana, "in the succession proceedings would not authorize them to transfer the corporate stock. Neither could they execute a deed to the concerned property without such authorization. Coronet’s attorneys went to New Orleans and appeared before the judge of the civil court to seek the requisite authority. Meanwhile, there had been another offer of $210,000 made for the property. This offer was cash. The $175,000 offer originally made was for a $55,000 down payment and the balance on terms. Plaintiff then increased its offer to $211,000 but with the same down payment. The court in New Orleahs heard the parties, examined the Grodehaux and elicited from them the answer that in their best judgment'a cash offer of $210,000 was more advantageous to the estate than the $211,000 offer on terms. Plaintiff carefully and repeatedly made clear in the Louisiana court that it was making its new offer without, in any manner, waiving any rights which might have accrued under the original oral offer and alleged acceptance. The Louisiana court authorized the sale for cash and it was consummated.
Plaintiff then instituted this suit against all the New Orleans residents under the “lo'ngarm. service” statute. Service was obtained on them in Louisiana. It is conceded these defendants were never in the State of Michigan, and as to the corporation that it was not admitted to do business in this State. Its sole connection with this State was its ownership of the realty here involved, except for the claim that a “tenant farmer” occupied part of the land. Defendant Banfield was personally served in Michigan. The circuit judge granted summary judgment as to all defendants except Banfield. As to him the motions were denied.
Count 1 of plaintiff’s complaint seeks specific performance of the alleged contract either by execution of a deed to the involved property or by transfer of defendant corporation’s stock. Alternatively a money judgment in tort is asked in count 2.
The tort relied upon by plaintiffs to establish limited jurisdiction in Michigan, thus permitting extended service, is characterized by them as “causing a third person not to perform its contract with appellant.” In substance, it is their claim that Mrs. Weis, the Gfodchaux, and defendant Banfield conspired to induce F.S.W., Inc. to breach its claimed oral contract with Coronet, Inc.
Defendants, moving for accelerated judgment, claimed:
(1) The contract for the sale of the land was absolutely void under the statute of frauds.
(2) The alleged part performance was totally insufficient to take it out of the statute.
(3) The requirements of the statute to give Michigan limited personal jurisdiction over the out-of-State defendants were not alleged and that there was no “doing or causing any act to be done, or consequences to occur, in the State resulting in an action for tort” and in consequence the court had no jurisdiction over the Louisiana defendants not served in Michigan.
The learned trial judge, in a considered and detailed opinion, granted summary judgment as to Mrs. Weis on the theory that irrespective of what she may have done to block the sale of the property, she had a clear legal right to protect her interest in the sale of an asset of her husband’s estate, of which she was the beneficiary. He held as to her complicity in the alleged conspiracy that the gravamen of the action is not the conspiracy but the wrongful acts causing the damages, He reasoned that Mrs. Weis had a legal right to see that the asset (whether the stock in F.S.W., Inc., or the realty itself owned by the corporation) bring the highest possible return and hence, that as to her there was no wrongful act. He based his holding on Roche v. Blair, 305 Mich 608, 613. We agree for the reasons stated and on the authority cited. Her posture in this litigation is distinguishable from any of the other defendants. For this reason we deal with the disposition as to her out of the order in which the issues were pleaded.
We turn now to count 1 and the claim of plaintiff that the contract for sale of the realty was not void under the statute of frauds, supra.
On the basis of the pleadings, affidavits, counter-affidavits, depositions, interrogatories and the answers thereto, the trial court found there was not that measure of part performance which would take the case out of the statute. Effectuating the purpose of the rule authorizing summary' judgment often presents a difficult and delicate exercise of judicial acuity. The judge must assiduously avoid making a finding on controverted fact issues. At the same time he must analyze everything properly before him to determine whether any genuine issue of material fact is raised. The line of demarcation is one of the most elusive in procedural law. In this case the trial judge located it and observed it punctiliously.
The support for the claim of part performance after challenge by affidavit had to be found in the deposition of Mr. Elliott, the person who actually did those specific things relied upon. The trial judge made no finding of fact as to what the deponent did or did not do. Rather he accepted as done everything Mr. Elliott claimed to have done. Thereupon, he assessed it on the basis of the legal test applicable thereto. Mr. Elliott deposed specifically that he. expended $800 in survey charges; that he bought meals for surveyors and potential purchasers; that the act of possession relied upon was entry upon the land to undertake the survey. Significantly, Mr. Elliott in response to an inquiry by counsel for appellee, said:
“The agreement was to survey the land and take whatever information I needed to satisfy myself I wanted to transact the deal.”' (Emphasis supplied.)
A careful examination of the whole deposition fails to reveal any specific item of expenditure in money other than the aforementioned $800. The deponent alleged other expenditures in general terms and claimed “I spent a lot of time.”
The trial judge, in his opinion, held:
“Here there is no showing of any part performance under the contract. The very most that can be said is that the plaintiff made certain expenditures of an investigative nature in order that it might determine whether or not it wanted to exercise its claimed option.”
As to count 1 we are constrained to agree with the trial judge and the Court of Appeals. The motion for accelerated judgment was properly granted.
Count 2 is somewhat more complex. In this count plaintiff alleges a conspiracy, as hereinbefore noted, among the Godchaux, Mrs. Weis, resident defendant Banfield and alleged agents within Michigan to induce the breach of the asserted contract. We have heretofore disposed of Mrs. Weis’ claimed participation and we address ourselves now to the allegations, supporting affidavits, counteraffidavits and depositions forming the basis for the motion for a sum mary judgment as to the other nonresident defendants. It is the theory of plaintiffs that subdivision 2 of the extended service statute, infra, which premises jurisdiction upon the doing or causing any act to be done or consequences to occur in this State resulting in an action for tort' was met by their pleadings and supporting documents.
Additionally, however, they claim, assuming arguendo that the trial court on the basis of the state of the pleadings and supporting documents properly granted the summary and accelerated judgments, reversible error was committed in so ruling because there were pending before him at that time motions under GCR 1963, 116.6. These motions were to compel answers to interrogatories or alternatively for an order of default for failure to answer pursuant to GCR 1963, 313.4. The interrogatories are claimed by appellants to be relevant to the jurisdictional question. No objections to the interrogatories were filed pursuant to GCR 1963, 309.3.
Defendants counter with the argument that the interrogatories were not relevant to the question of jurisdiction. They contend further that the testimony sought was from the named defendants as parties to fhe litigation. They argue that to compel answers by the defendants as parties would, in legal effect, be deciding adversely to them their pending motion for accelerated judgment on the jurisdictional ground. They rely upon Hilton v. W. T. Grant Company (WD Pa 1962), 212 F Supp 126, 130, holding “that the burdens incident to the status of a defendant ought not to be augmented until it is certain that the party involved really is properly a defendant.”
Thus is posed the dilemma under the rule. The plaintiffs contend they cannot establish their basis for jurisdiction without cross-examination of the named parties. The defendants counter with the proposition that persons cannot be made to respond as parties to litigation in a court which had no jurisdiction over them.
■ The omission of the trial judge to rule specifically on the pending motion to compel answers from out-state defendants as parties, or alternatively to enter a default judgment, requires us to conclude that he denied them. This, of course, for the reason that he decided the basic jurisdictional question in defendants’ favor. We, as the Court of Appeals did, take the motions as denied. We suggest a specific disposition of those motions would have been preferable, by denial, either in advance of, or simultaneously with, the motion for accelerated judgment on the jurisdictional ground.
Since the rule (hereinbefore footnoted) is cast in such form as to invoke an exercise of judicial discretion, i.e., “the court may make such order as may be just,” review must be addressed To an abuse of discretion rather than to an assessment of which of the 2 rules should prevail in case of conflict between them.
The ratio decidendi of the trial court’s conclusion is clearly discernible throughout his opinion. It holds, in effect, if plaintiff proved everything it pleaded, plus everything it contends it could prove if defendants were compelled to answer interrogatories, it still could not establish Michigan jurisdiction over the extraterritorially served defendants. In its most distilled form the trial judge’s opinion may be thus expressed:
“They [defendants] are alleged to have conspired but no act showing such conspiracy is alleged. No tvrongful act is set forth.” (Emphasis supplied.)
The same can be said with equal application to the proof sought to be elicited by the interrogatories.
We are not unmindful of the strongly urged contention of plaintiff that the inducing of the breach of a contract, even though the contract be unenforceable under the statute of frauds, is actionable. With the proposition in general terms we have no disagreement. The authorities cited in support thereof sustain it. What we think plaintiff cannot overcome is the lack of a wrongful act as the gravamen of the conspiracy. It is the act of conspiring to induce the breach upon which plaintiff must rely to supply limited Michigan jurisdiction.
The very best or worst that can be said of what all parties here are alleged to have done, is conspire to do what they had to do under the law of the State of Louisiana, i.e., obtain authorization to perform their contract to deed the land or sell the stock. It is admitted they could not have performed the contract with legal efficacy without the '.approval of the Louisiana court. As the trial court observed “defendants considered themselves morally bound by the agreement to sell for $175,000,” but this moral obligation was, under these circumstances, cool comfort. The irreducible fact is plaintiff entered into negotiations for the purchase of land with fiduciaries who were limited in performance to the extent the court which appointed them would ratify or confirm their acts'. When that court refused to approve acceptance of plaintiff’s offer, there was nothing the fiduciaries as such, could do. Any act of performance not judicially approved would have been a legal nullity.
Plaintiff, however, additionally seeks redress against them as individuals and as corporate officers with at least “color” of authority. Be that as it may, if such redress lies, it lies in a court which can exercise jurisdiction over the person and subject matter of such litigation. It should be carefully noted that we express no opinion in this regard.
The tort plaintiff relies on is a conspiracy to induce breach. As we noted with approval earlier herein, the gravamen of that tort is not the conspiracy but the illegal act. We, like the trial judge and the Court of Appeals, can find no pleaded illegal act occurring in Michigan.
For the reasons herein set forth the judgment of the Court of Appeals is affirmed. Costs to the defendants.
Dethmers, C. J., and Kelly, Adams, and Brennan, JJ., concurred with O’Hara, J.
3 Mich App 364, — Reporter.
CL 1948, §§ 566.108, 566.110 (Stat Aim 1953 Rev §§ 26.908, 26.910).
Executors of the estate of F. S. Weis in Michigan terminology.
CLS 1961, § 600.705 (Stat Ann 1962 Rev §27A.705).
Ten percent of an $8,000 charge for a complete survey.
“When Affidavits are Unavailable. Either party may state in his affidavit that he eannot present the material facts essential to justify Ms position because such facts are known only to persons whose affidavits he cannot procure.
“The affidavit shall name sueh persons and state why their testimony eannot be procured, together with a belief and reasons therefor as to the nature of their probable testimony. Thereupon the court may make such order as may be just, either denying the motion or ordering a continuance to permit the affidavit to be supported by further affidavits to be obtained, or depositions to be taken, or answers to interrogatories to be furnished, or discovery to be had,” | [
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] |
T. M, Kavanagh, J.
Plaintiff, in 1955, suffered an injury to his right knee arising out of. and in the course of Ms employment. In June of that year plaintiff was awarded $34 a week for 500 weeks under the workmen’s compensation statute for permanent and partial disability. Since 1955 plaintiff has developed new skills and found employment with other employers at wages higher than he was receiving at the time of the injury. However, when unemployed he collected the $34 per week allowed him as workmen’s compensation benefits.
In May of 1964 plaintiff was laid off work by Ms then employer Pioneer Engineering & Manufacturing Company and was awarded $37 per week for 19-1/2 weeks in unemployment compensation benefits. Under section 27n of the employment security act, the employment security commission deducted from its award of $37 per week the benefits of $34 per week plaintiff was receiving under the workmen’s compensation act. His final unemployment compensation benefits, therefore, were reduced to $3 per week. This determination was upheld by the referee, the appeal board of the Michigan employment security commission, and the circuit court for the county of "Wayne.
Leave to appeal prior to decision of the Court of Appeals, pursuant to GrCR 1963, 852, was granted by this Court on April 27, 1966.
Plaintiff contends that he is denied equal protection of the laws because of unreasonable classification of persons applying for benefits under section 27n of the employment security act. He contends that the classifications are unreasonable:
(1) As between claimants under the employment' security act who at that time are receiving work men’s compensation benefits and those seeking only unemployment compensation benefits;
(2) As between those seeking benefits under the employment security act who have received weekly workmen’s compensation benefits other than death benefits or scheduled benefits for a specific loss and those seeking unemployment compensation benefits who are receiving other benefits under the workmen’s compensation act; and
(3) As between those seeking benefits under the employment security act who had entered into a lump sum settlement of their benefits under the workmen’s compensation act prior to seeking unemployment compensation benefits and those seeking unemployment compensation benefits who are receiving weekly benefits under the workmen’s compensation act.
Plaintiff further contends that his right to workmen’s compensation benefits vested as of the date of injury in 1955, and that therefore (a) he is deprived of property without due process of law, and (b) there is an impairment of the obligations of contract when the legislature attempts to affect this vested right by providing that he must give up that same amount of unemployment compensation benefits to which he otherwise would be entitled.
Plaintiff’s final contention is that the circuit court applied section 27n of the employment security act retroactively absent an express mandate in the statute compelling that application.
Defendants, after accepting the facts set forth by plaintiff, contend that there is no need to look to the purposes of the employment security act to determine the meaning of section 27n, as the section is clear, unambiguous, and needs neither interpretation nor clarification.
It is further contended by defendants that there are neither contractual nor vested rights to unem ployment compensation benefits, as section 57 of the employment security act subjects all the rights; privileges, or immunities conferred by that act to repeal or amendment by the legislature.
In answer to plaintiff’s contention that section 27n of the employment security act is applied retroactively, defendants state that it has not been so applied, but rather is effective to all claimants who receive workmen’s compensation benefit's after September 6, 1963 (the date section 27n became effee-' tive), irrespective of the date of the award.
Defendants’ final contention is that section 27n of the employment security act does not, as applied to plaintiff, deny equal protection of the laws under the. United States or the Michigan Constitution, as''the classes adopted present reasonable classifications among applicants for employment security benefits.
We have concluded it is necessary in disposing of. this case to consider the constitutional question dealing with the classification of parties under the equal protection clauses of the State and Federal Constitutions. This question will be discussed first.
Section 27n of the employment security act, as added by PA 1963, No 188, reads in pertinent part as follows:
“(a) If an individual claims and is otherwise eligible for weekly benefits under this act for a week with respect to which he has received weekly benefits, other than death benefits or scheduled benefits for a specific loss, under the workmen’s compensation act of this State or under any similar law of another State or of the United States, the; individual's weekly benefits otherwise payable under this act for such week shall be reduced to the amount, if any, by which the individual’s workmen’s compensation weekly benefit for such week was less than his benefits otherwise payable under this act for such week. If the individual’s workmen’s compensation weekly benefit for such week equaled or exceeded his weekly benefits otherwise payable under this act for such week, no weekly benefits shall be payable under this act for such week.” (Emphasis supplied.)
This Court has held numerous times that the Michigan Const 1908, art 2, § 1, secures the same right of equal protection as does its counterpart in the Constitution of the United States. Gauthier v. Campbell, Wyant & Cannon Foundry Company, 360 Mich 510, 514, and cases therein cited. The same provisions in Const 1963, art 1, §§ 1 and 2, must likewise be held to afford the same rights as the Federal equal protection clause.
There is no doubt that State legislatures have a broad range of discretion in establishing classifications in the exercise of their powers of regulation. However, the constitutional guarantees of equal protection are interposed against discriminations that are entirely arbitrary. In determining what is within legislative discretion and what is arbitrary, regard must be had for the particular subject of the State legislation. There must be a relation between the classification and the purposes of the act in which it is found. Smith v. Cahoon, Sheriff, 283 US 553, 566 (51 S Ct 582, 587, 75 L ed 1264, 1274); Morey v. Doud, 354 US 457, 465 (77 S Ct 1344, 1350, 1 L ed 2d 1485, 1491); Beauty Built Construction Corporation v. City of Warren, 375 Mich 229; Palmer Park Theatre Company v. City of Highland Park, 362 Mich 326.
In the case of People v. Chapman, 301 Mich 584, a statute of this State was challenged as unconstitutionally denying the defendant therein equal protection of the laws. Justice Starr, writing for the Court, stated (pp 597, 598):
“It is well recognized that the legislature may make classifications of persons, provided such classifications are based on substantial distinctions and are in accord with the aims sought to be achieved. (Citing cases.) However, such classification must be neither arbitrary nor capricious, but must rest on reasonable and justifiable foundations. In Haynes v. Lapeer Circuit Judge, supra, p 141, the rule is stated:
“ ‘Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the class to which it naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary subclassification, it comes within the constitutional prohibition against class legislation.’ ”
See, also, Davidow v. Wadsworth Manfg. Co., 211 Mich 90, 97-102; Peninsular Stove Co. v. Burton, 220 Mich 284, 286; Smith v. Wayne Probate Judge, 231 Mich 409.
The obvious intention of the legislature in enacting section 27n of the employment security act was to prevent duplication of benefits to the unemployed who receive workmen’s compensation benefits. In doing so, the legislature made certain classifications of persons.
It permitted those not receiving workmen’s compensation benefits to receive full unemployment compensation benefits, while preventing those receiving total permanent, partial permanent, or temporary disability payments under the workmen’s compensation act from receiving full unemployment compensation benefits.
It permitted those who were recipients of death benefits under the workmen’s compensation act to receive unemployment compensation benefits, while preventing those receiving total permanent, partial permanent, or temporary disability payments under the workmen’s compensation act from receiving the same 'benefits.
It permitted those receiving workmen’s compensation benefits for a specific loss to receive unemployment compensation benefits, and prevented those receiving total permanent, partial permanent, or temporary disability payments from receiving unemployment compensation benefits.
It permitted those who had received lump sum settlements of total permanent, partial permanent, or temporary disability payments under the workmen’s compensation act to receive unemployment compensation benefits immediately after the “lump sum” settlement, while preventing those who received weekly total permanent, partial permanent, or temporary disability payments under the workmen’s compensation act from receiving unemployment compensation benefits.
Counsel for the defendants at oral argument admitted that the Michigan employment security commission so administers the law.
We direct our attention to the above classifications in reverse order of their enumeration, and consider their rationality, reasonableness, and relevance to the purposes of the employment security act attempted to be accomplished by this legislation, to determine whether the distinctions are based on substantial differences and justifiable foundations which operate uniformly on all.of the persons naturally in the various classes. ■ -
"We ask ourselves this question: Is there a justifiable, reasonable and substantial difference between these participants in workmen’s compensation benefits who did not qualify for unemployment compensation benefits because they were drawing weekly benefits under the workmen’s compensation act and those with the same disability, suffering injury at the same time, who received their workmen’s compensation benefits in one lump sum, as is provided by section 22 of part 2 of the workmen’s compensation act?
In answering this question, it is necessary to bear in mind that the express preferred administration of the workmen’s compensation act is (1) that recipients receive weekly payments as opposed to lump sum payments; and (2) that duplication of benefits is the obvious evil — if it is an evil — which the legislature has attempted to eliminate.
We find that section 27n does not accomplish either the purpose of this amendment or the preferred purposes of the workmen’s compensation act. It is obvious that weekly payments will be discouraged by the fact that if the weekly benefit is taken, the recipient will be precluded from obtaining unemployment compensation benefits when otherwise qualified. Further, the acceptance of the lump sum settlement under the workmen’s compensation act so as to qualify for unemployment compensation benefits would not in any way reduce the number of instances in which duplication of payments under the two acts would take place, and therefore, would not remedy the situation that the legislature seeks to avoid.
There is no substantial, rational, or justifiable difference between the classes established by this amendment pertaining to the lump sum payment exception. The injury is the same; the disability is the same; the length of the incapacity is the same; and even the benefits to which the two classes are entitled are the same. Plaintiff, who falls into the classification of one receiving weekly benefits rather than having taken a lump sum settlement prior to filing for unemployment compensation benefits, is deprived of the constitutional right of equal protection of the laws since all, including this plaintiff, have not been treated alike in determining their eligibility under section 27n of the employment security act.
The classifications made in section 27n of the employment security act between those partially permanently disabled and those under the specific loss provisions of the workmen’s compensation act fail to treat all within the class equally, as section 27n allows benefits under both the employment security act and the workmen’s compensation act for one suffering a specific loss and yet denies the same to one permanently and partially disabled.
Section 10(a) of part 2 of the workmen’s compensation act provides for certain benefits where the incapacity for work resulting from an injury is partial and matters not pertinent here. It continues as follows:
“Compensation shall be paid for the duration of the disability. In cases included by the following schedule, the disability in each such case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified therein: * * * .”
Continuing, the section enumerates 16 specific loss provisions and the number of weeks the partial disability will be deemed to continue.
Subd (b) of section 10 defines what is meant by “total and permanent disability.”
Clearly, then, specific loss is a species of the genus “partial permanent” disability. The only characteristic differentiating partial permanent disability from specific loss is that specific loss is “deemed to continue for the period specified,” whereas “partial permanent” disability continues for the duration of the incapacity.
Does the fact that some partial permanent disabilities are “deemed to continue for the period specified” justify a difference with respect to receipt of unemployment compensation benefits? We think not.
Two employees are permanently injured. Both have given up their common-law remedies against their employer. The working capacity of each is reduced, yet the employee with the specific loss is given the additional privilege of dual benefits, while the other is denied that privilege. This certainly does not provide the “equal protection to all upon which justice under law rests.” It is an arbitrary classification of those persons injured who qualify for both workmen’s compensation and unemployment compensation benefits.
We conclude, therefore, that section 27n of the employment security act — re-enacted as subd (m) of section 27 of the same act — was from the beginning constitutionally invalid and is now invalid in that it constitutes a denial to this plaintiff and others like him of equal protection of the laws under the Michigan and United States Constitutions.
For obvious reasons it is not necessary to discuss the other questions raised by the parties.
The judgment of the circuit court is reversed and the case remanded for entry of judgment in accordance with this opinion. Plaintiff shall have costs, .
Black, Souris, and Brennan, JJ., concurred with T. M. Kavanagh, J.
PA 1936 (Ex Sess), No 1, § 27n (CL 1948, § 421.27a), as added by PA 1963, No 188 (Stat Ann 1963 Cum Supp § 17.529[1]). Section 27n was repealed by PA 1965, No 281, but the same act reenacted substantially the same language as subd (m) of section 27 of the employment security act (CL 1948, § 421.27 [Stat Ann 1965 Cum Supp § 17.529] ).
CL 1948, §421.57 (Stat Ann 1960 Rev §17.561).
201 Mich 138.
CL 1948, §412.22 (Stat Ann 1960 Rev §17.172). This section was amended by PA 1965, No 44 — see Stat Ann 1965 Cum Supp § 17-.172.
CL 1948, § 412.10, as amended by PA 1965, No 44 (Stat Ann 1965 Cum Supp § 17.160). | [
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Adams, J.
Following an adverse jury verdict and denial of motion for new trial, plaintiff appealed to this Court as a matter of right on January 22, 1964. The ease was assigned to the Court of Appeals and the judgment for defendant was affirmed by that Court (2 Mich App 151). Plaintiff filed an application for leave to appeal to this Court. Leave was granted as was also appellant’s motion for leave to proceed in this Court in forma pauperis.
Plaintiff claims:
1. It was reversible error for the trial court to instruct the jury that a “violation” of the so-called trespass statute was negligence.
2. It was reversible error for the trial court to refuse to instruct the jury on wilful and wanton misconduct and gross negligence.
The second question will be considered first.
I.
The Issue oe Wileul and Wanton Misconduct and Gross Negligence.
Plaintiff charged defendant with: (1) gross negli gen.ce, and (2) wilful and wanton misconduct. The charges are not identical. This has been made clear in the leading Michigan case of Gibbard v. Cursan (1923), 225 Mich 311. A 13-year-old girl was hilled while walking on a paved country highway on her way home from school when she was overtaken and fatally injured by a motor vehicle driven by defendant. Such conduct was charged to be a wanton, wilful, and reckless act. It was urged that the deceased was guilty of contributory negligence as a matter of law. Plaintiff obtained a judgment in the lower court. On appeal, .the question of contributory negligence as a defense to a claim of wilful, wanton, and reckless misconduct was examined in this Court. In an opinion by Justice Clark in which six other members of the Court concurred, Justice Fellows concurring only in the result, it was said (pp 318-321):
“In addition to instructing the jury on the theory of claimed negligence of defendants and of claimed contributory negligence of plaintiff, the trial judge defined gross negligence, so-called, to be a wanton, wilful or reckless act, or a wanton, wilful, and reckless failure to perform a duty to another, and said, after stating plaintiff’s claims as to facts:
“ ‘If you find by the preponderance of the evidence in this case that these are the facts and that they show gross negligence — if you find that they show gross negligence on the part of the driver, and only slight negligence on the part of the girl, or less negligence than that on the part of the driver, * * * then the plaintiff is entitled to a recovery in this case.’
“The quoted excerpt is said to be error as stating a rule of comparative negligence, not recognized in this State, and it is urged that no case of gross negligence was made out. In the ordinary case of negligence, if the plaintiff has been guilty of negligence, contributing to the injury for which the action is brought, he cannot recover. It is to avoid this rule and to excuse contributory negligence of a plaintiff that the doctrine of gross negligence is usually invoked.
“When will gross negligence of a defendant excuse contributory negligence of a plaintiff? In a case where the defendant, who knows, or ought, by the exercise of ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury. Strictly, this is the basis of recovery in all cases of gross negligence. 20 RCL p 145. Such gross negligence is also sometimes called discovered negligence, subsequent negligence, wanton or wilful or reckless negligence, discovered peril, last clear chance doctrine, and the humanitarian rule. Other misconduct, different in kind, is also generally and incorrectly known as gross negligence, as we shall see later. Richter v. Harper, 95 Mich 221; Kelley v. Keller, 211 Mich 404 (20 NCCA 228); Fike v. Railroad Co., 174 Mich 167; Knickerbocker v. Railway Co., 167 Mich 596; Buxton v. Ainsworth, 138 Mich 532 (5 Ann Cas 146).
“The theory of gross negligence is that the antecedent negligence of plaintiff only put him in a position of danger and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause. Cooley on Torts (2d ed), p 674; Labarge v. Railroad Co., 134 Mich 139 (14 Am Neg Rep 575).
“If the plaintiff is in a position which has become dangerous and he is free from negligence, and the defendant knows, or ought by the exercise of ordinary care to know, of plaintiff’s peril, and nevertheless negligently injures him, there is no occasion to invoke the doctrine of gross negligence to excuse negligence of plaintiff, for there is no negligence of plaintiff to be excused. Schnurr v. Railway, 222 Mich 591.
“If the negligence of a plaintiff is concurrent with the negligence of a defendant, the rule as to antecedent negligence of plaintiff and subsequent negligence of defendant does not apply. The doctrine of gross, subsequent or discovered negligence may not be invoked to excuse concurrent negligence of a plaintiff. Labarge v. Railroad Co., supra; Krouse v. Railway Co., 215 Mich 139; 1 Thompson on Negligence, § 208; 7 LRANS 132, 152; 17 LRANS 707; 19 LRANS 446; 27 LRANS 379; Huddy on Automobiles (5th ed), p 610. And see Richter v. Harper, 95 Mich 221, at page 225.
“Nor can it be said that because a defendant’s negligence is great, of a comparative or superlative degree, it may therefore be called ‘gross,’ and that a plaintiff’s contributory negligence may, for that reason alone, be excused. The rule of comparative negligence does not obtain in this State. Richter v. Harper, supra; Labarge v. Railroad Co., supra.
“If one wilfully injures another, or if his conduct in doing the injury is so wanton or recldess that it amounts to the same thing, he is guilty of more than negligence. The act is characterised by wilfulness, rather than by inadvertence, it transcends negligence —is different in kind. Where recovery is sought on the theory that the injury was caused by wilful, wanton or reckless misconduct of a defendant, as distinguished from negligence, there is no more reason for permitting the defense of contributory negligence than in a case of assault and battery. True, such misconduct in this State and elsewhere usually has been called negligence, the word being qualified by such adjectives as gross, wanton, reckless, or wilful, but this is incorrect and has a tendency to mislead.” (Emphasis supplied.)
The distinction in terms and in conduct pointed out in the Gibbard Case has continued to be followed by this Court. In the case of Union Trust Co. v. Detroit, G. H. & M. R. Co. (1927), 239 Mich 97 (66 ALR 1515), a directed verdict for the defendant was affirmed, it appearing that plaintiff’s decedent was a passenger in an automobile which went upon the railroad tracks after going around a gate and' moving to the wrong side of the street where it was struck by a slowly moving boxcar. It was claimed the defendant was guilty of gross negligence and' that the rule of contributory negligence should not be applied. The Court in passing on this contention said:
“We do not have gross negligence in the sense of great or much negligence because that would introduce into our law the doctrine of comparative negligence which is foreign to this jurisdiction, and * * * while wilful and wanton acts are frequently designated as gross negligence, such designation is-a misnomer, because such wilful and wanton' acts' are not negligence at all. Upon this record there is no case made of subsequent negligence, nor-wilful or wanton acts of defendant or any of its servants.”
The case of Finkler v. Zimmer (1932), 258 Mich 336, was an action brought by the administrator of an estate. Plaintiff’s decedent had died of injuries suffered in a collision of automobiles at an intersection of highways. The opinion of this Court re-examined the rules announced in Gibbard and reaffirmed their statements. The Finkler Case, it should be noted, involved the guest statute. '
In the case of Sun Oil Company v. Seamon (1957), 349 Mich 387, Justice Talbot Smith wrote at length on contributory negligence and the doctrine of intentional harm. After citing and quoting extensively from other cases, he concluded (p 411):
“The reasoning behind these cases is clear: Wanton misconduct is a different kind of offense than ordinary negligence, even though it be gross. Fault is involved in both, but in the one the fault of the. callous, the brutish, the quasi-criminal? in the other' the human frailty of lack of care, of inattention, of diversion. These are faults of different hues in the spectrum of human conduct and so the courts have treated them. Our Court should do likewise.”
See Labarge v. Pere Marquette R. Co. (1903), 134 Mich 139 (14 Am Neg Rep 575), 141. See Willett v. Smith (1932), 260 Mich 101, 104; and McLone v. Bean (1933), 263 Mich 113, 115, which were cases arising under the Michigan guest statute.
See Nunn v. Drieborg (1926), 235 Mich 383, 386, where the Court’s inquiry as to malice and wilful act was directed to the intent of congress in creating the exceptions in section 17 of the bankruptcy act (11 USC § 35). See, also, Cogswell v. Kells (1940), 293 Mich 541, which involved the effect of discharge in bankruptcy as to plaintiff’s judgment for personal injuries.
Plaintiff’s requests to charge were supported by citation of the following Michigan cases: Battishill v. Humphreys, 64 Mich 514; Gibbard v. Cursan, supra; Willett v. Smith, supra; Schneider v. Draper, 276 Mich 259; Teeter v. Pugsley, 319 Mich 508; Davis v. Hollowell, 326 Mich 673 (15 ALR2d 1160); 326 Mich 607, which must be a bad citation since the case (West Bloomfield Company v. Haddock, 326 Mich 601) deals with reciprocal negative easements; and Deadman v. Detroit, J. & C. R. Co., 223 Mich 228.
Gibbard has been discussed. Willett, Schneider and Davis are guest passenger cases. This is not a guest passenger case and the guest passenger act or cases thereunder are not pertinent to the facts or legal issue in this case. While the guest passenger cases may be helpful (as also the cited bankruptcy cases), we do not regard them as controlling in determining the correct concepts of gross negligence and wilful and wanton misconduct at common law,
In Battishül, a little girl 2 years and 7 months old, while playing on the railroad track, was run over by a train of freight cars being pulled by an engine and tender running backwards. There was testimony that the view down the track was unobstructed. The members of the train crew testified that they were maintaining a lookout but that they never saw the child. Commenting on this testimony, the Court said (p 521):
“That they did not see it under the circumstances is conclusive proof that they did not keep a proper lookout. As well might the train have been run with no one in charge. It would have been no more reckless and more culpable than, with four men in charge, to run over this child, who was upon the track in plain sight, without seeing it. It shows in these men a reckless indifference to their duty under the situation and surroundings.”
The Court concluded that the train crew was guilty of “reckless negligence.”
In the case of Teeter v. Pugsley the facts showed that the plaintiff was injured by a shot from a gun recklessly discharged by the defendant. This Court held that the defenses of contributory negligence and assumption of risk were not permissible in an action for wilful injuries or injuries due to defendant’s wanton or reckless conduct and cited the Gibbard Case.
Deadman was a case of directed verdict against the plaintiff in which the motorman of an interurban abandoned control of the car and allowed it to crash into plaintiff’s stalled truck. The Court said the record presented a case of defendant’s wanton and wilful negligence (last clear chance) and that plaintiff’s negligence was a question for the jury.
We conclude that Gibbard’s definitions of gross negligence and wanton and wilful misconduct aye the applicable common law in Michigan today. It remains to review the testimony to test plaintiff’s claim that it displays wilful and wanton misconduct or gross negligence by defendant’s employees.
On April 25, 1958, Carl Harmon, the fireman on the diesel engine, had started his run at Battle Creek. He sat on the left side of the cab; the engineer sat on the right side. Before leaving Battle Creek, the engineer had received orders to slow down the train at "West Emmett. Passenger train No. 14, on which Harmon was the fireman, was eastbound. It was due at Imlay City in Lapeer county at 3:25 a.m. Proceeding eastward from Imlay City, the train came to Capac in St. Clair County; Emmett or West Emmett; Groodells (scheduled arrival 3:46 a.m.); Sunnyside road; West Tappan, near mile post 329 (scheduled arrival 3:51 a.m.); and Bartlett road crossing. The train was running 4 minutes behind schedule at West Tappan, due to the slow order for the train through West Emmett. The night had been cool and dark but clear.
After the train passed through West Emmett, its speed was resumed. When the train was a mile and a half to two miles to the west of West Tappan, Harmon saw lights ahead and mentioned to the engineer that the railroad must be running an extra that night. By an extra, he meant a freight or passenger train which was called an extra train. At the time, he mentioned to the engineer that there was an extra “in the hole” waiting for the single track. By this he meant that the extra train was standing on the westbound line or siding which ended a short distance west of the Bartlett road crossing and that the train, or extra, was waiting for the single track to be cleared. The engineer responded that it looked like business was picking up.
About one second or a second and a half later, Harmon realized that the lights were from a car on the track and yelled to the engineer, “Soak her, it’s a car.” The engineer already had hold of the brake valve and had put the brakes in emergency. It was Harmon’s judgment that the engine was approximately 700 feet from the car at the time the brakes were applied in emergency. At that point he could not see anything past the headlights of the car which were shining toward him. His seat in the cah was 10 or 11 feet above ground. As soon as the engine was close enough to the automobile so that the car lights were low down and the headlight of the engine cast a beam over the top of the ear, Harmon had an instant in which he could see beyond the car. He saw a person with the appearance of a man standing just north of the north rail of the westbound track. At the instant of impact he could not see anything more because dirty water from the car radiator and particles of the car were flying all around.
As the train came to a stop, Harmon grabbed his flashlight and started back. The car was found lying in a ditch along the railroad tracks. LaCroix was found in the ditch, almost submerged in water. LaCroix was given artificial respiration by one of the train crew. Harmon proceeded up the track toward the Bartlett road crossing. He found the gasoline tank from the car alongside the road. He found a flashlight lying in the road. The drive shaft and the transmission from the ear were in the middle of the eastbound main line.
On May 1,1958, Harmon gave a written statement of his version of the accident in a report to the trainmaster’s clerk. The following additional facts appear in the statement. Passenger train No. 14 consisted of 8 cars and was traveling at a speed of approximately 70 miles per hour at a point 1-1/2 to 2 miles west of the Bartlett road crossing. The train traveled approximately 16 telephone poles east of the Bartlett road crossing before coming to a stop.
Harmon amplified his statement concerning the 16 telephone poles under cross-examination by the railroad’s attorney. He stated that when the train stopped the engineer got off and examined the front of the engine to ascertain if there was any debris from the car on the engine or any damage to the engine which would prevent it from continuing to Port Huron. The engineer found some debris on the front of the engine which he removed and dropped on the right-of-way. The train was backed up to the crossing. When the train continued toward Port Huron, the engineer and Harmon looked for the debris. They found it 16 telephone poles from the crossing.
Harmon testified that he estimated the distance from the crossing to the front end of the engine when the train stopped to be approximately 2,000 feet. He subsequently learned that measurements were taken which showed it to be- 1,980 feet. He estimated the total stopping distance of the train to have been 2,800 feet.
During the trial, plaintiff’s counsel tried to establish that the engine crew did not maintain a proper lookout and that the fireman and engineer should have determined that the lights on the track were those of an automobile and not a train standing in the hole. Harmon explained the reason the headlight on the engine did not show over the top of the LaCroix ear was because the car had the appearance of being astraddle the rail with the wheels up on the ties and the rear end of the ear down between the main line, or slightly lower, thereby throwing the light beams of the ear upward from it. He testified that he first determined it was a car on the track when the engine was about 800 feet away. He said:
“If I could have told it any farther away, I certainly would have yelled, soak her. It would be only a safety measure to my own life.”
Later, while under cross-examination by defendant’s attorney, Harmon said:
“A. Our signals showed clear all the way through.
“Q. Did this serve to confirm what appeared to you to be classification lights of a train?
“A. Yes, it did.
“Q. Standing in the clear?
“A. I had no reason to think otherwise.
“Q. Mr. Harmon, if you would have thought at any time whether you saw these lights from a mile and a half or two miles or how far back you saw these lights, if you would have thought or suspicioned for 1 second that these lights were anything but a train in the hole which you had experienced there at times before, what would you have done and why?
“A. I would have taken immediate steps to stop that train at once. If I had detected that it was a foreign object of any kind on that track, I would not [want] to take a chance of hitting it, of endangering the lives of whoever might be in it, but not only that any foreign object from an impact like that could get under the wheels, between the wheels and the rail, just enough to lift the flange- of the wheel above the rail and derail it. It would derail the whole train at that speed, endangering my own life as well as all the patrons in the train behind us, behind our engine.”
Harmon’s concern for his own safety and that of the passengers “negates a reckless disregard of the rights of others.” Standard Oil Company v. Ogden & Moffett Company (CA 6, 1957), 242 F2d 287, 291.
Andrew Gray, the engineer on the passsenger train, testified that he began to work for the Grand Trunk Railroad as a fireman in 1914. Gray confirmed the testimony of Harmon that he first saw the lights when the engine was about a mile and a half from the Bartlett road crossing. He related that some conversation was had with Harmon about business picking up and that the railroad was running an extra.
Gray testified that as his engine got closer to the L'aCroix car he thought the headlights on the LaCroix ear were running lights on a locomotive. He thought the locomotive was over on the westbound track. He estimated that his engine was about 800 feet away at that time. He described running lights as being lights under the cab for the purpose of spotting an engine or train along the railroad which would show up at the time of getting-fuel oil or water. These lights do not show ahead of the engine. They show down. Gray testified that about the time he was blowing the second whistle for the Bartlett road crossing he came to the conclusion that the lights ahead were not classification lights but were running lights on a locomotive. The standard whistle signal for a highway crossing is 2 long, a short and a long blast. Gray had just about gotten the second long blast done when he realized that there was a car on the track ahead and dropped his hand to the brake valve and put the brakes in emergency. He fixed the place where he began to sound the whistle as being about 80 rods—a quarter of a mile—from the Bartlett road crossing. The bell was ringing automatically.
The fireman, Harmon, and the engineer, Gray, it may be noted, were called as plaintiff’s witnesses ánd not for cross-examination under the statute.
Harry Neal, a deputy sheriff, went to the scene while the train was still there. Neal made a report of the accident and was asked concerning his listing therein of LaCroix as a pedestrian standing on the crossing. He said that this was done from information given him. Neal later in his testimony was asked if he talked to Harmon at the scene. He said that he did and that Harmon told him he saw a man standing on the crossing.
The entire evidence in this case — whether testimony of witnesses, exhibits or other physical evidence — fails to reveal anything out of the ordinary or unusual in the way train No. 14 was being operated prior to the accident.
From this lengthy review of the testimony in the case, it is evident that there is no proof from which a jury could find that defendant wilfully injured LaCroix or that the conduct of defendant’s employees was so wanton and reckless as to transcend negligence. The judge did not err in refusing to charge as to wanton and wilful misconduct. Holmes v. Detroit, G. H. & M. R. Co. (1912), 171 Mich 633. Likewise, since the presence of LaCroix was not known to defendant’s employees until almost the very moment of impact with his car, there is no proof of gross negligence from which a jury could make a finding of the same. In any event, as will be seen later, the judge did charge as to subsequent negligence. The trial judge did not err in refusing to give any other charge as to gross negligence.
II.
The Charge as to the Trespass Statute.
The trespass statute, PA 1917, No 245 (CL 1948, § 469.421 [Stat Ann § 22.1231]), in 1955 read as follows:
“No person shall have authority to walk, ride, drive or be upon or along the tracks within the right-of-way of any railroad company operating its lines within the confines of any city or village of this State, or to go upon or cross such tracks or right-of-way at any place other than a public or private crossing: Provided, That the provisions of this act shall not apply to passengers on trains, employes or licensees of a railroad company while engaged in the performance of the duties of their employment or acting pursuant to the license, or to any person going upon such right-of-way or tracks to save human life or to protect property, or to any person going or being upon or in the station grounds or depot of any such railroad company as a passenger or for the purpose of transacting business therewith, or for any other purpose, or to any person, members of his family, or his employees going upon such right-of-way or tracks for the purpose of crossing from 1 part to another of a farm he may own or lease, where such farm lies on both sides of the right-of-way.”
After the close of proofs and pursuant to request of defendant, the trial judge instructed the jury:
“A Michigan statute states no person shall have authority to go upon or cross railroad tracks or right-of-way at any place other than a public or private crossing provided that the provisions of this act shall not apply to any person going upon such right-of-way or tracks to save human life or to protect property. A violation of a statute is negligence.”
Plaintiff contends the statute prohibits nothing and makes no act unlawful, nor does it provide any punishment, and that it is, therefore, impossible to “violate” such statute. Plaintiff’s case was pled upon the primary theory that defendant owed 13 different duties to him and that by breach of those duties “defendant thereby became guilty of gross negligence and wilful and wanton misconduct.” In addition to plaintiff’s • pleaded theory of wilful and wanton misconduct, there developed upon the trial of this case a claim of negligence and of last clear chance. Consequently, plaintiff’s negligence became an issue as to whether it was a proximate cause of the accident.
It was shown upon trial that prior to the accident plaintiff had been drinking. He arrived at a bar shortly after midnight, drank 3 to 5 bottles of beer, and played shuffleboard with 2 men until around 2:30 a.m. when he went to the home of 1 of the men to drink and play records. They drank what beer was in the house, possibly some more beer from a supply LaCroix had in his car. After they were there a while, plaintiff asked the friend to go to LaCroix’s car and get a bottle of whiskey. LaCroix alone drank all the contents of the bottle. After this, LaCroix asked directions to his house and then left. He ended up on the railroad track, nowhere near his home. To get to the railroad track, he had to go past several main streets and travel a total distance of about 5-1/2 miles. When the investigating police officer got no closer than 2 feet from LaCroix, he could smell the odor of beer and alcohol on his breath. Mr. LaCroix’s memory of this event was erased by a trauma. He has no present knowledge of how his injuries occurred or how his automobile became stuck on the railroad track.
PA 1917, No 245 in its entitling clause is not restricted to cities and villages, hut states:
“An act to prevent trespassing on the rights of way and tracks of railroad companies within this State.”
The language of the act, taken as a whole, particularly the farm crossing exclusion of owners, et cetera, of á farm lying on both sides of the right-of-way, leads us to conclude that the trespass statute was applicable to this case. The statute, however, is;mot a penal one.' It is little more than a refinement of the common law as to who shall or shall not be considered to be a trespasser. Consequently, for the judge to state, “A violation of a statute is negligence,” was erroneous. The judge immediately followed this statement by saying:
“If you find that Mr. LaCroix violated this statute and that his negligence in so doing was a proximate cause of his injuries, there can be no recovery in this case. If-you find that Mr. LaCroix violated this statute but that such violation was not a proximate cause of his injuries, his violation of the statute would not prevent his recovery of damages in this case if you find the defendant to have been negligent and that defendant’s negligence was a proximate cause of plaintiff’s injuries.
“A person may go upon or cross railroad tracks or right-of-way at a public or private crossing and may go upon such right-of-way or tracks to save human life or to protect property.”
While Harmon’s testimony would indicate that LaCroix was on the crossing at the time of the accident, plaintiff introduced testimony that defendant’s claim agent had stated LaCroix was standing alongside his car waving his arms just before the accident. Since the judge carefully left for determination by the jury the issue of proximate cause and the issue as to whether plaintiff was where he was to save human life or to protect his property, the jury could not have been misled and the court’s error must be deemed to have been harmless.
Plaintiff’s requests to charge totalled 51. Defendant’s requests.to charge totalled 67, While in some cases modifications were made by the trial judge, the court’s instructions to the jury were taken almost entirely from either plaintiff’s requests or defendant’s requests. The trial court gave a total of 71 instructions. .
In this connection it should be noted that, viewing the court’s charge as a whole, plaintiff was allowed to go to the jury not only on the issue of defendant’s negligence and proximate cause but also on the issue of defendant’s subsequent negligence. The court, in accordance with plaintiff’s request No. 35, charged as follows:
“Whether Mr. LaCroix’s injuries were due solely to the negligence of defendant’s engine crew without contributory negligence on his part, or, on the other hand, were due to the subsequent negligence of the engine crew after Mr. LaCroix’s negligence had placed him in a position of peril and then ceased to operate as a proximate cause of the ensuing im juries, in either event Mr. LaCroix would be' entitled to recovery. If defendant’s engine crew discovered, or in the exercise of due care should have discovered, Mr. LaCroix in a position of peril in sufficient time to be able by the exercise of due care and diligence in the use of the means at hand to. avoid injury to him but failed to exercise such care and use such means with the result that he was .injured by reason of such neglect of the enginé crew, then the railroad is liable to him for damages regardless of whether he came into such position of peril without fault or negligence on his part or through his own negligence [in violating a statute or otherwise] which had ceased to operate as a proximate cause of the ensuing injury.” (It particularly is to be noted that the portion in brackets was added by the trial judge to plaintiff’s request.)
Viewed in its entirety, we conclude, as' did the Court of Appeals (p 156), that:
“The court’s instructions to the jury relative to the trespass statute * * * are clear, fair, proper, and amply supported by the record.”
Affirmed. No costs, plaintiff having been allowed by order of this Court to proceed in forma pauperis.
Dethmers, C. J., and Kelly, T. M. Kavanagh, O’Hara, and Brennan, JJ., concurred with Adams, J.
See CL 1948, §617.66 (Stat Ann § 27.915) .—Reporter.
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] |
Dethmers, C. J.
This is defendant’s appeal, on leave granted, .from Court of Appeals reversal of a summary judgment entered on the pleadings in circuit court in defendant’s favor in plaintiff’s' suit on the uninsured motorist provisions of an automobile insurance policy issued by defendant to plaintiff.
Defendant’s motion for summary judgment was filed December 19, 1963. It was governed by CCR. 1963, 117, which permits such motion to be based, as it was here, on the ground that plaintiff’s complaint failed to state a claim upon which relief can be granted. For the purpose of that motion, both at the trial and appellate levels, every well-pleaded allegation in the complaint is assumed to be true. Hiers v. Detroit Superintendent of Schools, 376 Mich 225. So considered, we find the following to be facts pleaded by plaintiff:
Plaintiff was injured on June 24, 1960, in an automobile collision between his automobile and an uninsured automobile which was then áiid • the're being operated negligently by the owner.
The policy issued by defendant to plaintiff contained, inter alia, a promise to pay in these terms:
“1. Damages for Bodily Injury Caused by Uninsured Automobiles.
“To pay all sums which the insured or his legal representative shall be legally entitled to recover ás damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, * * * sustained by the insured, * * * ‘ and arising out of the * * * use of such uninsured automobile, provided, for the purposes of this indorsement, 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.”
It was also provided that:
“6. Arbitration. If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile, * * * 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. * * * Such person and the company each agree to consider itself hound and to be hound by any award made by the arbitrators pursuant to this indorsement. Such an award shall be a condition precedent to any action against the company.”
and
“Exclusions.
“This indorsement does not apply: (a) to bodily injury to an insured, * * * with respect to which such insured, * * * shall, without written consent of the company, make any settlement with or prosecute to judgment any action against any person * * * who may be legally liable therefor.”
In plaintiff’s complaint it is further alleged that on June 24, 1960, date of the accident, plaintiff went to defendant and demanded payment of the amount to which he would be entitled under the policy; that defendant refused to pay; that plaintiff then, on that day, demanded that defendant arbitrate pursuant to the arbitration provisions of the policy and defendant refused, contending that there was no liability to plaintiff on the part of the uninsured motorist and, hence, none on defendant’s part; that thereafter plaintiff did on numerous occasions demand that the matter he submitted to arbitration and defendant continually refused to enter into arbitration or to take any steps for arbitration or to cooperate with plaintiff so that arbitration could be had; that in February of 1961 plaintiff retained counsel and commenced suit against the uninsured motorist and immediately notified defendant thereof; that defendant advised plaintiff that it would take no part in said lawsuit; that plaintiff’s attorney thereafter, on July 10, 1961, wrote a letter to defendant offering to arbitrate pursuant to terms of the policy; that defendant refused to take steps to arbitrate as requested or demanded by plaintiff; that on July 28, 1961, plaintiff’s attorney again wrote defendant demanding that it do something about arbitrating plaintiff’s cause and that it forthwith arbitrate the matter, but defendant did not do so; that on September 11, 1961, plaintiff’s attorney wrote defendant stating that he had often written defendant seeking arbitration but that defendant had done nothing about it, so that plaintiff’s attorney could only conclude defendant was refusing to arbitrate and that, therefore, he would now proceed with the pending lawsuit against the uninsured motorist, and he sent a copy of the summons and requested defendant to enter an appearance for the uninsured motorist and the letter stated in conclusion that plaintiff would not now arbitrate because defendant had, for so long, in effect, refused to arbitrate; that defendant thereafter refused to defend the uninsured motorist or to enter an appearance for him in the lawsuit; that on October 2, 1961, defendant demanded arbitration; that on October 8, 1962, plaintiff took a default judgment in the case against the uninsured motorist for $10,000; that on November 9, 1962, plaintiff served on defendant a copy of said judgment and demanded payment thereof by it; that on April 22, 1963, plaintiff commenced the instant action against defendant to enforce such payment.
These allegations of facts touching on refusal of defendant to arbitrate are disputed by defendant.
Defendant’s defense is that plaintiff breached the arbitration requirements of the policy which provided that arbitration should be a condition precedent to any action by plaintiff against defendant on the provision here in question, and that under the exclusion (a) clause of the policy plaintiff had absolved defendant from liability by prosecuting the suit against the uninsured motorist to judgment without defendant’s written consent. In response, plaintiff contends, as pleaded in his complaint, that defendant waived the compulsory arbitration provision of the policy by failure to act on it within a reasonable time and, further, that by its failure to act on plaintiff’s demands for arbitration defendant became estopped from asserting the defense of the arbitration provisions of the policy and its exclusion -(a) clause.
Defendant may waive the compulsory arbitration provision of its insurance policy by its conduct.
“A clause in an insurance policy providing for arbitration or appraisal of the loss or damage as a condition precedent to a suit by the policyholder to recover insurance is inserted wholly for the protection of the insurer and may be waived by it. Such waivers need not be expressed in terms, but may be implied by the acts, omissions, or conduct of the insurer or its agents authorized in such respect.” 29A Am Jur, Insurance, § 1617, p 703.
. In Shapiro v. Patrons’ Mutual Fire Insurance Company of Michigan, 219 Mich 581, the insurance policy there involved also contained an arbitration provision. This Court held the insured entitled to bring an action against the insurer without compliance- with the arbitration requirement because the insurer had caused delay of an arbitration award for more than 6 months, which delay this Court termed unreasonable, unwarranted and oppressive to the insured. This Court said (p 588):
“Under the circumstances the plaintiff was warranted in abandoning the arbitration proceedings and bringing this action.”
Whether defendant refused arbitration or unreasonably delayed it presents a question of fact on this record. If the jury should find the facts in that respect to be as alleged in plaintiff’s complaint, it cannot then be said that, as a matter of law, that did not constitute a waiver by defendant of the arbitration requirements and the exclusion (a) clause of the policy. Defendant says there can be no effectual waiver of a stipulation in an agreement unless made intentionally, with knowledge of the circumstances, citing 12 Am Jur, Con-, tracts, § 354. Defendant says this did not occur here. On the pleadings, this, too, presents a question of fact for the jury. Defendant urges that there cannot be said to have been a waiver of arbitration by it because plaintiff had the right to go to arbitration without the let or hindrance of defendant. This is no answer to the fact that defendant could, by its conduct, waive its rights to arbitration regardless of what plaintiff did or failed to do.
Defendant demanded arbitration after plaintiff’s attorney informed it that plaintiff was no longer willing to arbitrate and was going to go ahead with his suit against the uninsured motorist. If defendant’s conduct had already worked a waiver of its rights to arbitration, its subsequent demand could not revive them.
“The insurer, once having waived the right to demand arbitration of the loss under the terms of the policy, cannot require that the matter in dispute be submitted to arbitrators.” 29A Am Jur, Insurance, § 1617, p 704.
While.the shoe was on the other foot in Schwier v. Atlas Insurance Co.; 227 Mich 104, where plaintiff- assured refused to arbitrate and commenced suit to which the insurer pleaded said refusal as a defense and plaintiff subsequently offered to arbitrate, we think that the holding in that case that defendant’s refusal of that offer did not operate as a waiver by defendant of its pleaded defense, means, as applied here, that defendant’s waiver, if any, by refusal to arbitrate before plaintiff pressed its suit, would be final and not altered by its subsequent demand for arbitration.
If it be urged that waiver by defendant of the arbitration requirements would avail plaintiff nothing with respect to the policy’s exclusion (a) clause, we would say that the two are corollary, the exclusion clause serving to lend greater force to the arbitration requirements, and that with the latter waived, if it was, the purpose of the former disappears and it no longer stands as a bar to plaintiff’s action against defendant.
We think the plaintiff’s complaint contains allegations giving rise to an issue of facts as to whether defendant did waive its rights to arbitration and to preventing suit against the uninsured until defendant should give plaintiff written consent therefor. Accordingly, the holding of the Court of Appeals, setting aside the summary judgment, should be affirmed and the case remanded to circuit court for trial on the issues of waivers as pleaded. Costs to plaintiff.
Kelly, Souris, O’Hara, and Adams, JJ., concurred with Dethmers, C. J.
T. M. Kavanagh, J., did not sit.
Black, J., concurred in the result.
Brennan, J., took no part in the decision of this case.
2 Mich App 501, 377 Mich 711. | [
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Black, J.
Like the three Durant Cases this is another tort action where summary action below lias divided the Court — hopelessly and inconclusively. Again the rock that trisects the stream of judgment is that importation from the Federal system known as accelerated or summary judgment, found in OCR 1963, 116, 117. The supporters of quick and easy riddance of politically troublesome cases will not even recognize' — in fact have steadily ignored since Rules 116 and 117 became effective— what seem to be the supremely controlling pilot-directors of the aforesaid importation, referring specifically to Sonnentheil v. Christian Moerlein Brewing Company, 172 US 401 (19 S Ct 233, 43 L ed 492); Sartor v. Arkansas Natural Gas Corporation, 321 US 620 (64 S Ct 724, 88 L ed 967); Poller v. Columbia Broadcasting System, Inc., 368 US 464 (82 S Ct 486, 7 L ed 2d 458); and United States v. Diebold, Inc., 369 US 654 (82 S Ct 993, 8 L ed 2d 176), all having been relied upon in the prevailing opinion of the first Durant Case (374 Mich at 88-91), wherein summary judgment was denied. Meanwhile others acknowledging that the four cited Federal decisions do exist, were unwilling to apply them to the second and third Durant Cases (see Souris, J., 375 Mich at 647-650 and at 666). The curious result was that misfortunate defendants King, Bashara, Merrell and Waldron were held for trial on denial of summary judgment (374 Mich 82) while the more favored defendants McKeehan (374 Mich 93), Van Dusen, Elliott, Romney (375 Mich 628) and Brucker (375 Mich 665) were let out on grant of summary judgment.
All this took place in the same action with all defendants correspondingly charged with a libel of the plaintiff or actionable participation in such libel. It must be that Rules 116 and 117, wrought supposedly by and upon the Court’s own hammer and anvil, are mighty abstruse when not even 5 Justices can agree upon any dependable guide for application of those rules to actions for tort that are based upon the common law and depend upon testimonial proof and the legal sufficiency of such proof.
Had Professor Rodell been seated here for judg-. ment as the 3 Durant Cases came up, I am sure he would have hatched a cyclic new killy-loo for application of Rules 116 and 117, a legal bird with left- and right wings arranged reversibly so that all flight might go round and about rather than just backward. The reference appears in Williams v. City of Detroit, 364 Mich 231, 276, 277. To quote Rodell again:
“ ‘The law is the killy-loo bird of the sciences. The killy-loo, of course, was the bird that insisted on flying backward because it didn’t care where it was going but was mightily interested in where it had been. And certainly The Law, when it moves at all, does so by flapping clumsily and uncertainly along, with its eye unswervingly glued on what lies behind.’ Rodell, ‘Woe Unto You, Lawyers!’, ch 2, p 23, Reynal & Hitchcock, p 20, Pageant Press, Inc., New York City.”
Since submission of this appeal, seven of us have seen and heard the telecast “A Bell for Okinawa.” Contrary to probative opinion reached upon reading the cold print of appendix and briefs, that audiovisual review has brought the writer to definite agreement with defense counsel that the telecast discloses no actionable defamation of plaintiff and that Nuyen v. Slater, 372 Mich 654, affirming grant of summary judgment, controls that point as a matter of law. Like the letter written by Mrs. Slater to the State health department, nothing conveyed to eye and ear by the film “defamed plaintiff within the commonly accepted meaning of the word. See 3 Restatement, Torts § 559.” (Souris, J., writing for the majority in Nuyen, p 662).
So much, then, for plaintiff’s claim that he is possessed of a cause for defamation. But another question, not answerable by demonstrative or documentary proof alone, remains for due process test of defendant’s motion for summary judgment. Such question depends for answer upon that which may indeed be proved but yet is not; referring specifically to defendant’s key defense which, under heading “affirmative defenses,” is designated in its answer as paragraph (7). Paragraph 7 reads:
“(7) Plaintiff, while in Germany, acted to preempt the limelight as a public figure, or a celebrity, or a public personage, and, consequently, he lost his right to privacy, since: (i) he himself sought publicity and consented to it, and so he cannot now complain of such publicity; (ii) his personality and affairs already had become public, and these can no longer be regarded as Ms own private business; and, (iii) television, in common with the press, has a privilege, guaranteed by the United States and Michigan Constitutions, to inform the public about those who have become legitimate matters of public interest”.
One need but add that the affirmative defense thus pleaded may — if supported by due proof — turn out to be airtight as a matter of law. On that score see the respective opinions of Curtis Publishing Company v. Butts (Associated Press v. Walker), 388 US 130 (87 S Ct 1975, 18 L ed 2d 1094), so far as such opinions deal with Ceneral Walker’s fully tried case. But the validity of that defense may be rightfully tested only at close of all proofs, and then by motion for an instructed negative verdict as done in both Butts and Walker. As yet it has not received that exact proof-bolster which ever must precede determination of a cause by judicial judgment distinguished from jury verdict.
Upon the procedurally restricted showing now before the Court I hold that plaintiff’s cause as pleaded cannot be tested for legal sufficiency until, in the course of a due and complete trial, both parties have submitted proof for and against the proposition that the defendant telecaster actionably invaded Ms “right to be let alone” by repeating the telecast after having received from plaintiff the latter’s cease and desist letter of May 7, 1958. In such regard we find that plaintiff has alleged in his declaration, and defendant has not denied, that:
“13. Plaintiff immediately, through attorneys, caused a letter to be sent to the defendant requesting that defendant cease and desist from further distribution and telecast of said film and advising the defendant that said film was false and defamatory and an invasion .of his right of privacy.
“14. Notwithstanding receipt by defendant of this letter the defendant did again, recklessly and without the knowledge or consent of plaintiff, telecast said film on or about September 2, 1958.”
Thus' far we are referred to nothing, nothing of record at all, which might tend to explain or justify defendant’s going on with the second telecast or, possibly, tend to show an “adequate” investigation, after receipt - of the cease and desist letter, upon strength of which defendant may have become immune legally from plaintiff’s charge of actionable invasion. There may indeed be such an explanation or justification. Defendant may have investigated to such extent as would satisfy the requirements of acceptable publishing standards. But that we do not yet know and will not know until defendant undertakes its quoted defense, a defense which would seem to require exemptive proof, not allegation, that defendant in proceeding with the second telecast did not depart from such standards. To quote that part of the Court’s opinion which, in Curtis Publishing Co. v. Butts, pp 158, 159, concluded the Walker Case:
“In contrast to the Butts article, the dispatch which concerns us in Walker was news which required immediate dissemination. The Associated Press received the information from a correspondent who was present at the scene of the events and gave every indication of being trustworthy and competent. His dispatches in this instance, with one minor exception, were internally consistent and would not have seemed unreasonable to one familiar with General Walker’s prior publicized statements on the underlying controversy. Considering the necessity for rapid dissemination, nothing in this series of events gives the slightest hint of a severe departure from accepted publishing standards. We,¡ therefore conclude that General Walker should not be entitled to damages from the Associated Press.”
With plaintiff’s claim of defamation out of this case as a matter of law, the briefed question of privilege — qualified or unqualified — takes on a not. yet fully explored aspect of legal substance. Neither of the courts below has considered the question of privilege excepting as it applies in the context of plaintiff’s said allegation of defamation. Hence the controlling question on present appeal is whether, as against defendant’s motion for summary judgment, plaintiff is entitled to that kind of a trial our own Constitution supposedly assures, before the trial judge may hear and determine any motion for entry of a negative judgment. I stand for such a trial and therefore vote to reverse this latest order granting summary judgment, the finally assigned, merit of which is that there is no “genuine” issue of fact. As for that adjective “genuine”, see dissenting comment in Coronet Development Company v. F. S. W., Inc., 379 Mich 302, 314, 315.
The trial judge filed two opinions. Each upheld defendant’s said motion. In his first opinion the judge declared his view of the decisive question of law this way:
“Here the defendant, Evening News Association, has moved for a summary judgment for a myriad of reasons which may he reduced, however, to one simple statement as follows: They move for the summary judgment because they state the defendant, as a visual broadcaster, is exempt from liability for defamation by reason of a qualified privilege absent malice.”
On motion for reconsideration the trial judge found that the film televised by defendant “is not defamatory as a matter of law of any of the characters it depicts.” Agreeing that that was and is true, there was and now is no question of privilege for judicial consideration excepting as that question may apply to plaintiff’s claim that his right of privacy was actionably invaded. The issue then became whether, both in circuit and upon submission to the seated panel of the Court of Appeals, plaintiff’s cause was determinable properly “on the pleadings as augmented by the exhibit of the published article and the film itself.” The quotation is taken from the concluding paragraph of the trial judge’s opinion on motion for reconsideration. The full paragraph reads:
“This court, in finding that defendant was qualifiedly privileged in televising the film, also finds as a matter of law that the film and its published prototype were in substantial and material agreement, considering* what we must recognize as limitations of photography in depicting the written word, and without allegation of express malice in such televising, defendant Evening News Association, as the television station disseminating the film, is entitled to summary judgment of no cause of action on the pleadings as augmented by the exhibit of the published article and the film itself,”
Plaintiff’s canse arose, if at all, in 1958. It was tried to the point of mistrial in June of 1963. At and prior to the time of mistrial the law of privacy was fitful if not downright enigmatic. One judge, with manifest justification back in 1956, likened it to a “haystack in a hurricane” (Ettore v. Philco Television Broadcasting Corporation [CA 3], 229 F2d 481 [58 ALR2d 626]). But that dubious situation in our jurisprudence was as nothing, now that 1967 and Time v. Hill, 385 US 374 (87 S Ct 534, 17 L ed 2d 456) have arrived. Time v. Hill suggests imperatively that the intrusion of constitutional questions into the action for invasion of privacy requires of the courts of the States that they develop their precedents of substance only when the facts, the all important facts, are completely and testimonially assembled before the trial judge and trial jury (where as here one of the parties has preserved his right of trial by jury).
One need but read, thoughtfully, “Privacy: The Right to be Let Alone,” by Ernst and Schwartz, The Macmillan Company, 1962; the complete symposium “Privacy” appearing in the Spring 1966 issue of Duke University’s Law and Contemporary Problems (No. 2); Professor Bloustein’s “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” (September 1966 issue of Publishing Entertainment Advertising Law Quarterly, p 166); Mr. Silver’s “Privacy and the First Amendment”, written for the May 1966 issue of Fordham Law Review, No. 4, p 553; Mr. Goldstein’s “The Constitutional Rights of Privacy — ‘A Sizable Hunk of Liberty’ ”, written for the Summer 1966 issue of Maryland Law Review, p 249; and Mr. Rodgers’ “A New Era for Privacy”, written for the Winter 1967 issue of North Dakota Law Review, p 253, to conclude that judicial consideration of most if not all of the legal and constitutional questions arising from an asserted cause for invasion of privacy should not be undertaken until all of the circumstances of such asserted cause have been marshaled and presented in the course of trial.
Let us examine Time v. Hill for verification of this, after having considered the prescient first paragraph of Mr. Silver’s mentioned article:
“In New York Times Co. v. Sullivan, the United States Supreme Court held that State tort law and its judicial enforcement is ‘State action’ within the Fourteenth Amendment. Thus, where such law unduly interferes with freedom of speech or press under the First Amendment, it cannot be enforced.
“Although the Times Case arose out of a libel suit, there can be no doubt that any tort or other action cognizable in State courts will be subject to future constitutional test. The next tort action to undergo constitutional scrutiny will undoubtedly be that of invasion of privacy. Indeed, the Supreme Court has recently accepted a privacy case arising out of a judgment awarded to an individual publicized in Life magazine. As the Court stands poised at the brink of entry into yet another State domain, it would be propitious to clearly understand the problems posed by the present law of privacy and the possible resolutions to these problems.”
Three features of Time v. Hill stand forth as of today’s stage of that yet unsettled case.
The first and most important is that the case was tried to jury verdict and entry of judgment; that the verdict as to liability was sustained below and reversed by the Supreme Court, and that reversal was not for entry of judgment in favor of the defendant but for retrial, the Court having found (385 US at 391):
“Turning to the facts of the present case, the proofs reasonably would support either a jury finding of innocent or merely negligent misstatement by Life, or a finding that Life portrayed the play as a re-enactment of the Hill family’s experience reckless of the truth or with actual knowledge that the portrayal was false.”
The next is that two members of the Court found it necessary to join three other members provisionally “in order for the Court to be able at this time to agree on an opinion in this important case based on the prevailing constitutional doctrine expressed in New York Times Co. v. Sullivan, 376 US 254.” (Quotation from Mr. Justice Black’s separate opinion, p 398.)
The last, drawn from the first two, is that the Court simply could not have approached the writing of any opinion or opinions of substance for the case on strength of summary judgment procedures. Ear from being a precedent for summary disposition of an action for invasion of privacy, Time v. Hill stands as a unanimous determination that Hill’s cause as alleged and tried should be retried, reversible error having been discovered in the trial judge’s charge to the jury.
Now for the case at bar: Without the record of a completed trial, how may this Court decide as a matter of law that the defendant enjoyed some legal privilege to deliver the second telecast? How may the Court determine, again as a matter of law, that the circumstances of the second telecast did or did not give rise to a cause for invasion of privacy, a cause that may not have existed prior to the time of that telecast? For answer consider what is before the Court at present writing.
Three opinions of this case have been submitted for signature. One, prepared by Justice Brennan, stands for affirmance. Another, prepared by Justice Souris, stands for reversal on ground that the question of defamation only is a triable issue of fact, it being his view that plaintiff has failed to plead a cause for invasion of privacy. I am unable to sign either opinion; hence this separate contribution.
1. The Brennan Opinion.
This opinion goes so far as to make up a finding of facts on the unique if not virginal assumption that the Court is armed with authority not only to try Mr. Weeren’s case on merit but to determine it upon findings of fact and conclusions of law as in GCR 1963, 517 provided. These findings enter our record under the unabashed declaration that “we must now tell the story of Franz J. Weeren against the Evening News Association as it can be gleaned from the words of Mr. Weeren himself and the uncontroverted exhibits, documents and pleadings in the cause.” Then comes “the story,” told with factual selections about as unfavorable to the plaintiff’s cause as one reasonably might expect in the course of a defensive jury argument, even unto histrionic demand for outright discard of plaintiff’s cease and desist letter of May 7, 1958, as having fallen “short of the mark” (the “mark” not being identified either by citation or proof).
Marked definitely by the advent of United States v. Diebold, Inc., 369 US 654 (82 S Ct 993, 8 L ed 2d 176), the instant duty of this Court would seem to be the other way around, no court as yet — circuit, appellate, or Supreme — having been authorized to test more than defendant’s motion for summary judgment. Diebold says, at 655:
“On summary judgment the inferences to be drawn from the underlying facts contained in such materials [“affidavits, attached exhibits, and depositions submitted below”] must be viewed in the light most favorable to the party opposing the motion. A study of the record in this light leads us to believe that inferences contrary to those drawn by the trial court might be permissible. The materials before the district court having thus raised a genuine issue as to ultimate facts material to the rule of International Shoe Company v. Federal Trade Commission [280 US 291 (50 S Ct 89, 74 L ed 431)], it was improper for the district court to decide the applicability of the rule on a motion for summary judgment. Fed Rules Civ Proc, 56(c).”
To the credit of both, neither the trial judge nor the panel below undertook any such findings of fact or imfavorable-to-plaintiff forensics. For the trial judge’s restriction of decision to the question of privilege, determinable solely “on the pleadings as augmented by the exhibit of the published article and the film itself,” see the concluding paragraph of his second and final opinion, quoted ante. As for the appellate panel, the judges there disposed of plaintiff’s appeal strictly on strength “of the pleadings, film and article on which .the film was based” and proceeded to hold that defendant’s do ings were privileged as a matter of law, “that there was no showing of material falsity or malice,” and that there could be no claim “of excessive publication.” (2 Mich App at 77.) No resort to the incomplete record of testimony was attempted, the panel understanding properly that there was presented before it the validity of a motion for summary judgment only; certainly no duty to weigh incomplete proof, find facts, and determine the merits of the pleaded cause and the pleaded affirmative defenses.
2. The Souris Opinion.
Justice Souris, looking upon plaintiff’s complaint as failing to allege a cause for invasion of privacy, alleges that “at this late date” the Court should not “treat it as if it were a two-count complaint alleging causes of action for defamation and also for invasion of privacy.” I reply that there is no need for consideration of such treatment, the complaint being amply sufficient under our rules of “notice pleading.” Indeed, as early as the time for answer the defendant knew that it was called upon for response to a combined complaint for defamation and invasion of privacy, both theories of recovery having arisen from the same set of facts as pleaded. Witness paragraph (7) of its answer, quoted above, pleading specially defendant’s reasons for defending against the second theory on ground that plaintiff had “lost his right to privacy.” Consider next the applicable rule as related in McDonald v. Hall, 193 Mich 50, 53, 54:
“When a single and continuous purpose runs through an entire transaction made up of various acts, each of which might alone constitute a cause of action, it is proper to set out all the facts in one count as a single cause of action. 31 Cyc, p 119, and cases cited in note.”
So far as concerns Justice Souris’ criticism that the complaint is not in two-count form, he is the first to raise that point. The date for insisting on such hyperelegant pleading really is too late. See Douglas v. Marsh, 141 Mich 209, 213, 214, reading:
“It will be noted that the objection made was not that there was any technical failure to aver sufficient facts to establish a liability on the part of the defendant as owner, but the distinct point ruled was that the declaration, being in the alternative, was too uncertain in its statement to sustain a verdict. It is the settled rule that duplicity in a count cannot be made the subject of objection at the trial, but should be made the subject of special demurrer. 7 Encyclopedia Pleading & Practice pp 243, 244. See, also, Fuller v. City of Jackson, 82 Mich 480. It would have been better pleading to set out the two possible theories in separate counts; but unless the one averment negatives the other, the objection of duplicity was not good” ;
and this concurring passage of Kruk v. Minneapolis, St. Paul & Sault Ste. Marie R. Co., 249 Mich 685, 689:
“The cause of action for negligence undoubtedly was inconsistent with the charge under the hazardous employment act. The former was based upon the relation of master and servant, and the latter on the theory that the relation did not exist. Circuit Court Rule No 21, §7 [1919], permits .the joining of inconsistent causes of action in a declaration, but requires that they be charged in separate counts. The second count violated this rule. The defect, however, was in form, not in substance. It should have been challenged by motion in the nature of special demurrer, and was waived by pleading the general issue. Douglas v. Marsh, 141 Mich 209; 31 Cyc, pp 277, 278, 719.”
SUMMARY
First: There is no precedent for the adjective posture of this case as some of the Brethren view it. Considering the process that is due, nothing beyond a judgment of remand with instructions is in order. It is a fact that, prior to trial, no one regarded the case as one for summary judgment on defendant’s motion, or as one due other than for trial of the fact and law issues of defamation and invasion of privacy. The unamended pretrial statement subscribed by Judge Wise records, under “Plaintiff’s version”:
“This is the case of the Bell for Okinawa. It is a libel and slander, invasion of privacy action by television.”
Under “Defendant’s version” defendant set forth its “summarized defenses,” suggesting nowhere that plaintiff had not pleaded a combined cause as thus averred by plaintiff. Then, under “Issues,” Judge Wise inserted the words “issues of fact and law.”
Under and in accordance with these auspices of pleading and pretrial procedure the trial went on some 7 days to the point of declared mistrial. Resort to GrCR 1963, 117 was not attempted until after the trial had proceeded to such point. Then the only affidavit offered in support of summary judgment was that of defendant’s counsel. It contained no facts such as would be admissible in evidence to establish the grounds stated in the motion. That seems to be pretty much conceded. Nonetheless, and despite the fact that both courts below were careful not to depend upon the incomplete testimonial record to bolster either the motion or the respective opinions of such courts, some here would have the court extend summary judgment practice so that one failing to move under the rule until the cause has been partly tried may then move for summary judgment on whole or partial strength of such incomplete trial and obtain, at that stage, the equivalent of an instructed negative verdict and consequent negative judgment.
This is not all. Until the record below arrived in this Court, defense counsel refused to recognize any part of the transcript of the trial as rightfully supporting his motion for summary judgment. To quote from defendant’s brief as submitted to the Court of Appeals:
“Counsel for appellant has printed what he deems to be favorable excerpts from the transcript of a lengthy trial under the optional provision of appellate rules, GrCR 1963, 800.12(1), which permits him, in a case originally filed in the Supreme Court, to use either an appendix or transcript.
“The trial evidence, however, is not a proper part of this appeal, since Judge Canham, in giving his opinion on reconsideration of the motion, specifically stated that he had ‘considered pleadings on file in this Court with attached exhibits and two viewings of the film.’ ”
It may be that the writer has gone into too much detail here; detail purposed toward full exposure of what the record discloses is total unemployability at present of Rule 117. But that has been deemed necessary, the better to guard against the possibility of impression that this Court is getting ready to sanction resort to part of the record of a mistried jury trial for support of a motion under Rule 117 for entry of a negative judgment.
Second: It is no secret now, the three Durant Cases considered (374 Mich 82; 375 Mich 628; 375 Mich 665), that the profession and bench of Michigan are groping for some, any, degree of certainty for ascertainment of the circumstances under which motions- for summary judgment in tort actions are grantable properly. The uncritical reliance in some of the Durant opinions, upon that qualifying adjective “genuine” (see GCR 1963, 117.3), has left too many lawyers with erroneous impression that the trial judge presiding is under duty — and therefore possessed of right — to determine whether any presented and possibly controlling issue of fact is creditable, veritable, legitimate or, indeed believable by any jury the court might select. True, the judge may believe nothing set forth in an affidavit or deposition offered for or against summary judgment; he may even convince himself that the affiant is either lying or mistaken. He is nevertheless possessed of no authority to enter precipitate judgment upon strength of such conviction or to adjudicate that a possibly controlling issue of fact made by affidavit or deposition is not “genuine.” He sits in the same position as on motion for an instructed verdict. If there is an issue of fact, “genuine” or not, to him, the motion must be denied. The issue of fact and its attendant, the credibility of witnesses, remains for the appointed trier or triers of fact. That was made clear in the first Durant Case, 374 Mich at 89, 90 (citing the Sartor and Sonnentheil Cases) and later by Justice Souris in the second Durant Case, 375 Mich at 651, 652 (citing the same cases).
Third: Probably the decision cited oftenest thus far in privacy cases is Pavesich v. New England Life Insurance Co., 122 Ga 190 (50 SE 68, 69 ALR 101, 2 Ann Cas 561, 106 Am St Rep 104). As other writers in this field have done, the opinion of the court properly credits our Justice Cooley with having originally declared that the specific essence of the right of privacy is “the right of the individual to be let alone.” For the convenience of those who may wish to pursue the subject in general, these seemingly dependable quotations from Pavesich are appended:
“The right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law1, is also embraced within the right of personal liberty. Publicity in one instance, and privacy in the other, are each guaranteed. If personal liberty embraces the right of publicity, it no less embraces the correlative right of privacy, and this is no new idea in Georgia law. In Wallace v. Georgia C. & N. R. Co., 94 Ga 732 (22 SE 579), it was said: ‘Liberty of speech and of writing is secured by the constitution, and incident .thereto is the correlative liberty of silence, not less important nor less sacred.’ The right of privacy within certain limits is a right derived from natural law, recognized by the principles of municipal law, and guaranteed to persons in this State both by the Constitutions of the United States and of the State of Georgia, in those pror visions which declare that no person shall be deprived of liberty except by due process of law.” (122 Ga 196, 197 [50 SE 70, 71].)
“The right of privacy, however, like every other right that rests in the individual, may be waived by him, or by any one authorized by him, or by any one whom the law empowers to act in his behalf, provided the effect of his waiver will not be such as to bring before the public those matters of' a purely private nature which express law or public policy demands shall he kept private. This waiver may be either express or implied, but the existence of the waiver carries with it the right to an invasion of privacy only to such an extent as may be legitimately necessary and proper in dealing with the matter which has brought about the waiver. It may be waived for one purpose, and still asserted for another; it may be waived in behalf of one class, and retained as against another class; it may be waived as to one individual, and retained as against all other persons.” (122 Ga 199 [50 SE 72].)
Let me repeat, from the above, that “Liberty of speech and of writing is secured by the Constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred.” Now that liberty of speech and press have been thrust nationally into the right of action for defamation if not directly into the right of action for invasion of privacy (but see Warren Spahn’s Case, supra), it is a blind appellate court that cannot foresee injection into cases as at bar of that correlative right to be let alone which, in Pavesich, came to consideration and approval. This of course implies no present decision or conviction either way. It does say, right out, that all such questions should be considered by appellate courts only in the light of fully tried — not summarily truncated — actions for damages. It says also that if fully tried cases like Time v. Hill, Messner v. Spahn and Curtis Publishing Co. v. Butts were too sticky and inconclusive for entry of final judgment, this summarily judged case is too much so for present entry of such a judgment.
Needless to say, the views set forth in this opinion are expressed solely within the procednrally circumscribed context of defendant’s summary motion and of our inquiry into the validity of that motion. No “logical extensions” thereof are permitted. See Larzelere v. Starkweather, 38 Mich 96, 101, McNally v. Board of Canvassers of Wayne County, 316 Mich 551, 558, and quotation of Chief Justice Marshall in Humphrey’s Executor (Rathbun) v. United States, 295 US 602, 627 (55 S Ct 869, 79 L ed 1611). The quotation was taken from Cohens v. Virginia, 19 US (6 Wheat) 264, 399 (5 L ed 257).
As noted above, my vote is cast to reverse and for remand to circuit for entry of order denying this motion for summary judgment. All costs should abide the final result.
Supplement (September 25, 1967):
liefer to page 494 above, noting the then fact of submission of three opinions of this case, each variant from both of the others. There are four opinions now, Justice Adams having contributed September 21st a third view for reversal.
Looking at these circumstances of judicial paralysis, it is not out of order to observe that the profession as well as the case would be served better by scrapping all four opinions followed by entry of an order vacating both judgments below for reason that the record is not presently in shape for entry of any kind of peremptory judgment.
Durant v. Stahlin (Appeal in re King, Bashara, Merrell, and Waldron), 374 Mich 82; Durant v. Stahlin (Appeal in re Van Dusen, Elliott, Romney), 375 Mich 628; Durant v. Stahlin (Appeal in re Brucker), 375 Mich 665.
Some of that “New Legality” of which we are now being told must have been at work when the second and third Durant Cases came up. See the Touchy presentation of this clarion arouser, and consider the stirring conclusion thereof (53 ABAJ, June 1967; pp 544, 546) :
“The concept of the new legality has not run its course. In order to achieve justice for all of the citizens of the United States, the proponents of the new legality believe that the concept must be carried down to the lowest court. It is not acceptable for the inferior eourts to mete out injustice or to continue to enforce principles that are unjust or unfair and must be corrected on appeal. The trial eourts, in whieh the majority of the citizens either achieve justice or are deprived of it, must decide the case at hand on the principles of the new legality. In other words, they must see that a just result is reached then and there; no longer can they excuse their decisions because they are bound by rulings from higher courts. They must take the example of the Supreme Court of the United States, whieh does not consider itself bound by precedent. They must deeide the real issues at hand and render a just decision.”
This was done successively in the courts below by agreement of the parties. We in turn, the parties stipulating agreeably, accept the film and its audio-visual presentation as a document forming part of defendant’s motion for summary judgment. See GCR 1963, 117.3.
Compare these pleaded asseverations with the reasoning and result of Spahn v. Messner, 18 NY2d 324 (221 NE2d 543) (remanded for further consideration, Messner v. Spahn, 387 US 239 (87 S Ct 1706, 18 L ed 2d 744).
That motion alone with affidavits for and against plus the stipulated appraisal by all 3 courts of “A Bell for Okinawa.” Such was the properly exclusive record rrpon which the trial judge based his decision. See contextual quotation of the judge’s second opinion, post.
“With the arrival of this appeal there remains but little, doubt that our fancy new rules of peremptory practice are being regularly employed — subtly and effectively — to circumvent the revered and hitherto guaranteed right to have presented issues of fact tried to and decided by juries. For attestation of such right, as it was in the beginning, is now, but — if current sly schemers do have their way— will never hence be, see United States Const Am 7; Mich Const (1850), art 6, §27; Mich Const (1908), art 2, §13 (duplicating the 1850 guaranty) ; Underwood v. People, 32 Mich 1 (20 Am. Rep 633) ; Swart v. Kimball, 43 Mich 443; Paul v. Detroit, 32 Mich 108; Risser v. Hoyt, 53 Mich 185.” (Romero v. King, 368 Mich 45, 49, 50.)
“The state of the law is still that of a haystack in a hurricane but certain words and phrases stick out. We read of the right of privacy, of invasion of property rights, of breach of contract, of equitable servitude, of unfair competition; and there are even suggestion^ of unjust enrichment.” (p 485.)
Mr. Silver’s references at the time (May, 1966) were to New York Times Co. v. Sullivan, 376 US 254 (84 S Ct 710, 11 L ed 2d 686, 95 ALR2d 1412) and to Mill v. Hayes, 18 App Div 2d 485 (240 NYS2d 286), affirmed memorandum, 15 NY2d 986 (207 NE2d 604, 260 NYS2d 7).
This happened again in Curtis Publishing Co. v. Butts, supra. See the opinion of Mr. Justice Black, 388 US at 170.
In Diebold the Court considered the Federal rule from whence our Rules 116 and 117 were copied in near verbatim substance. Summary judgment was, of course, denied.
2 Cummins & Beecher, Michigan Judicature Act (2d ed), p 1711, —Reporter.
Sartor v. Arkansas Natural Gas Corporation, 321 US 620 (64 S Ct 724, 88 L ed 967) ; Sonnentheil v. Christian Moerlein Brewing Company, 172 US 401 (19 S Ct 233, 43 L ed 492). — Reporter.
Notably Ernst and Schwartz, supra at 49. They say:
“THOMAS COOLEY was the author of The Elements of Torts, pub lished in 1878. There, of personal immunity, he says: ‘The 'right to one’s person may be said to be a right to he let alone.’ This seems to be an instance where the definition for- a word precedes the word itself.”
As one reads contemplatively through the eases and reviews dealing with the right of action for invasion of privacy, it comes to him more and more that the defense (where there is a defense and a defense is needed) is regarded as a waiver by the plaintiff of his asserted right, not a privilege of the defendant to intrude upon or disturb that right.
It may be further noted that, upon inquiry from this Court, the attorneys for both plaintiff and defendant stated it was their desire that this Court consider the entire record in its determination of the issues presented. | [
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] |
T. M. Kavanagh, J.
Plaintiff is here on leave granted from the Court of Appeals’ affirmation of the trial court’s grant of a directed verdict in favor of defendant under both counts of a negligence complaint.
Defendant Grlen Dalman entered into a contract with the city of Otsego to repair, clean, and paint a 150,000-gallon elevated water storage tank owned by the city. The consulting engineering firm of Williams. & Works prepared all the specifications for the contract, was designated as engineer in the contract, and had complete charge of all inspections. The contract divided the work to be done into various parts. Defendant contractor was obligated to notify the engineer 48 hours in advance of the time he proposed to begin any one of the several parts of the work so that the engineer could provide for inspection of the work completed.
Plaintiff Robert Clark was the employee whom Williams & Works designated to be in charge of the project and make all the inspections. Defendant Dalman knew of plaintiff’s designation and talked with plaintiff several times about the work. Plaintiff made inspections of the tank before the work began and during the repairs. Plaintiff’s proofs indicated that defendant failed to notify Williams & Works that the cleaning of the tank was finished, and instead immediately applied the NO-OX-ID to the walls and floor of the tank as well as to the ladder extending from the roof hatch down into the tank.
Witnesses testified that NO-OX-ID Is extremely slippery, like lard or grease. The contract specifications required defendant to coat the entire ladder up to about two feet from the roof with NO-OX-ID.
Plaintiff testified that he went to the premises for the purpose of inspection. In attempting to look into the tank, he discovered that even with a flashlight he was unable to see inside the tank. Therefore, he proceeded to descend into the water tank and slipped on the NO-OX-ID coating applied to the tank and ladder by defendant. Plaintiff suffered serious injuries when he fell to the bottom of the tank.
Plaintiff instituted suit in April 1963, by complaint, alleging in paragraph 9 of the first count that plaintiff’s personal injuries were proximately caused by defendant’s breach of warranty and failure to notify Williams & Works or plaintiff of the stage of the work involved and the fact that the water tank had been coated with a greasy, compound, of which plaintiff had no knowledge.
Count 2 was a negligence count and paragraph 15 thereof read as follows: : .
“15. That plaintiff’s injuries and damages were caused solely by the negligence of defendant in the following particulars:
“(a) Failure to warn Williams & Works and/or plaintiff that the water tank had been coated with a greasy compound when it was known or should have been known that such compound created a slippery and dangerous condition to anyone walking there.
“(b) Failure to warn Williams & Works and/or plaintiff that the water tank had been coated with a greasy compound when it was known or should have been known that plaintiff was going to inspect the tank and would in all likelihood fall as the result of said compound.
“(c)-Failure to warn Williams & Works and/or plaintiff that the water tank had been coated with a greasy compound when it was known or should have been known that such compound was hard to see and observe and would create a highly hazardous condition for anyone walking in the tank.
“(d) Failure to provide plaintiff with assistance for his inspection when it was known or should have been known that assistance was needed to prevent .injury to plaintiff as a result of the greasy coating-on the tank, of which plaintiff had no knowledge.”
Defendant answered, and as to count 2, paragraph 15, denied that plaintiff’s injuries and damages were caused solely by the negligence of defendant. Defendant denied that he failed to warn Williams & Works or plaintiff that the water tank had been coated. He denied the use of any greasy compound except NO-OX-ID which was prescribed in the specifications, and further alleged this type of coating was well known to Williams & Works and to plaintiff. Defendant stated that Williams & Works and plaintiff knew or should have known that the tank had been coated with the prescribed NO-OX-ID and asserted the truth to be that plaintiff, with full knowledge of the condition existing, could or should have exercised such care for his own safety as to avpid any likelihood of a fall as a result of the compound. Defendant further denied that the coating- on the interior of the tank was difficult to see and denied that said coating created a highly hazardous condition, and alleged that plaintiff in the exercise of reasonable care in the circumstances could and should have avoided any injury to himáélf. Defendant further asserted that he at all times 'stood ready -to provide plaintiff whatever assistance he might require in the inspection of said tank. An affirmative defense of contributory negligence was also pleaded.
At the conclusion of the trial, the trial court directed a verdict for defendant on the contract count, stating:
“Count 1, as the court sees it, is founded on allegations of breach of contract, but in essence it is an ex delicto action. That is, when you look at the substance of the claims and allegations it is ex delicto, a tort.
“Now, research of counsel and of the court discloses that in the State of Michigan we are committed to the rule that tort may not be founded upon the failure to perform a contract, in other words, nonfeasance.
“Tort may be founded upon misfeasance, that is the negligent performance of a contract, but not the failure to perform.”
As to count 2, the trial court concluded there was no negligence on the part of the defendant and, therefore, no fact question for the jury to decide under count 2, and directed a verdict of no cause for action on both counts.
The Court of Appeals affirming the trial court said (1 Mich App 513):
“This case should be decided on the issue of legal duty. The question, then, is whether the defendant Dalman had a duty to protect those who might enter the water tank by refraining from coating the interior of the tank with a slippery compound without notification to the engineering firm supervising this work. This is strictly a legal question, since no material facts are in dispute.” (p 519)
“This Court finds that the failure of the defendant to notify Williams & Works of completion of the various stages of the work on the water tank was not unreasonably dangerous conduct. * * *
“The record shows that the plaintiff knew the contract required the defendant to coat the interior of the tank, including the ladder, with NO-OX-ID, and that plaintiff had been in the tank on two occasions prior to his accident. Plaintiff himself testified' that he had extensive experience in the inspection of water tanks. This Court concludes that the defendant could not reasonably have foreseen or anticipated plaintiff’s accident as the result of his failure to give the contractually required notice to plaintiff’s employer.” (p 521)
On appeal to this Court we have two questions:
First. Whether plaintiff’s cause of action, if he has one, is in tort or in contract. If count 1 was intended to state a cause of action on the contract, and we conclude it does, then the trial court was correct in directing a verdict for the defendant on this count. Since the plaintiff was not a party to the contract in any sense of the term, he cannot enforce an obligation created by it. Neither the contract nor any of its provisions was designed to give him a benefit of any kind. The trial court was correct in concluding that in essence plaintiff’s remedy was an action ex delicto sounding in tort. See Hampson v. Larkin (1945), 318 Mass 716 (63 NE2d 888).
Second. Count 2, however, presents a more difficult question. In order for plaintiff to be entitled to go to the jury on the negligence count, he must prove: first, the existence of a legal duty on the part of the defendant to the plaintiff; second, failure on the part of defendant to exercise ordinary care in the performance of his duties; and third, damage to the plaintiff proximately resulting from negligent performance of duties by defendant.
Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person- or property of others. This rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls, as not to injure another. Pinnix v. Toomey (1955), 242 NC 358, 362 (87 SE2d 893).
Such duty of care may be a specific duty owing to the plaintiff by the defendant, or it may be a general one owed by the defendant to the public, of which the plaintiff is a part. Moreover, while this duty of care, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the theory being that accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contract. But it must be kept in mind that the contract creates only the relation out of which arises the common-law duty to exercise ordinary care. Thus in legal contemplation the contract merely creates the state of things which furnishes the occasion of the tort. This being so, the existence of a contract is ordinarily a relevant factor, competent to be alleged and proved in a negligence action to the extent of showing the relationship of the parties and the nature and extent of the common-law duty on which the tort is based. Pinnix v. Toomey, supra, p 362, and cases therein cited.
A favorable-to-plaintiff view of the evidence indicates that pursuant to the contract between defendant and the city of Otsego, plaintiff was the duly authorized inspector of the project with obligations of general inspection as well as the specific duty of inspecting the various stages of the repair operation before defendant was authorized to proceed to the next step in the repair work. Far from being a trespasser on the premises, plaintiff -was at least a licensee, or possibly an invitee. The general duty of a contractor to act so as not to unreasonably endanger the well-being of employees of either subcontractors or inspectors, or anyone else lawfully on the site of the project, is well settled. It is clear defendant owed such a duty to plaintiff, who was lawfully ou the premises at defendant’s request.
In Anderson v. Deming Motor Sales, 371 Mich 223, 229, 230, this Court quoted with approval from Cabana v. City of Hart, 327 Mich 287, 305 (19 ALR2d 333), as follows:
“ ‘In considering the question whether defendant was entitled to a directed verdict, the testimony must he construed as strongly as possible in favor of the plaintiff. (Citing cases.) The specific inquiry is whether this Court can say, as a matter of law, giving to plaintiff’s proofs the strongest probative force to which they are entitled, that the evidence was not sufficient to justify submitting to the jury the questions of defendant’s negligence and its knowledge or notice of the situation.’ ”
Might reasonable minds differ as to whether defendant Dalman was guilty of negligence in failing to warn plaintiff of the NO-OX-ID coating on the tank in view of the following evidence? Defendant had previously called plaintiff requesting inspections; plaintiff was lawfully on the premises pursuant to his duties as the inspector; defendant knew there was only a two-foot trap door through which light could reach the inside of the tank and through which plaintiff would have to push his head and shoulders to view the inside of the tank; defendant knew or in the exercise of reasonable care ought to have known that plaintiff would have to enter the tank; defendant knew his contract required him to notify plaintiff’s employer of the completion of the cleaning process in order that inspection might be made before he proceeded to apply the NO-OX-ID, but despite this he failed to do so; NO-OX-ID is extremely slippery, like lard or grease.
From an examination of the facts in the light most favorable to plaintiff, we conclude reasonable minds might so differ based on the facts in this record. Therefore, we must conclude that the trial court erroneously granted the motion for directed verdict under count 2 and that the Court of Appeals was in error in affirming the directed verdict.
Justice Kelly in his opinion discusses the subject of contributory negligence on the part of plaintiff. Admittedly this subject was not passed upon by the Court of Appeals nor by the trial court. Normally, under these circumstances, we would not pass on it here. However, a careful reading of the entire testimony would lead us to a conclusion that reasonable minds might differ as to- whether plaintiff was guilty of contributory negligence by entering the tank under the circumstances and in the manner indicated.
We conclude, therefore, that the question of contributory negligence of the plaintiff would be a question for the jury.
The judgment is reversed and a new trial granted. Plaintiff shall have costs.
Souris, O’Hara, and Adams, JJ., concurred with T. M. Kavanagh, J.
Defendant Dalman testified on direct examination as follows:
“Q. Now, some time prior to — shortly prior to November 27, 1961, yon called Williams & Works, did you not?
“A. Yes.
“Q. And you requested they send down an inspector, did you not?
“A. Yes.
“Q. And did you — did you at that time advise them of the status of the work ?
“A. I don’t know.
“Q. You do not know for sure?
“A. No.”
On cross-examination defendant Dalman testified as follows:
“Q. * * * Now, when was the first time you tallied with Mr. Clark after you entered into the contract?
“A. I couldn’t say. I don’t know.
“Q. Well, was it after the repair work was done?
“A. It was probably during. — sometime during the job, yes.
“Q. You talked to him once?
“A. Oh, no, I seen him more than that.
“Q. I see. Witness, you never at any time prior to the time that you put on the NO-OX-ID notified anybody at Williams & Works that it was ready for inspection, did you?
“A. Pardon me?
“Q. You never at any time, prior to putting on the NO-OX-ID notified anybody at Williams & Works they should come down and inspect the tanks, did you?
“A. Yes, I did.
“Q. Who did you notify?
“A. Bob.
“Q. When did you notify him?
“A. I don’t know when, but Bob was around the job several times. I also ealled him on the phone several times,” | [
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Per Curiam.
Refer to the appellate decision below (3 Mich App 204), affirming circuit court reversal of the defendant hanking commissioner’s negative view of plaintiff’s statutory applications. This Court, concerned that the impact pendente of PA 1966, No 23, amending CL 1948, § 487.39 (Stat Ann 1968 Cum Supp § 23.767), might require another result, granted leave to appeal.
In mind is the jurisdictional nature of plaintiff’s complaint. By express pleading and recital of the pretrial statement it is here under and in pursuance of section 21 of the financial institutions act (CL 1948, §487.21 [Stat Ann 1957 Rev § 23.739]). To the statutory marrow thereof this is an equity pro ceeding, brought up now for de novo consideration. See detailed comment upon section 21 in Bank of Dearborn v. Banking Commissioner, 365 Mich 567, 574. The circuit court by that section haying been
“given jurisdiction of such suits and empowered to 'affirm, modify, vacate, or set aside the order of the commissioner in whole or in part and to make such other order or decree as the court shall decide to be proper and in accordance with the facts and the law.”;
the Court of Appeals and this Court in turn are equipped with like jurisdiction. These introductory thoughts lead to the merits.
A majority of the Justices find themselves in agreement with the attorney general’s position that the legislative history as well as the wording of former section 39 of the financial institutions act (CL 1948, §487.39 [Stat Ann 1957 Rev § 23.767]) lead necessarily to conclusion that the legislature intended from the beginning to permit a change of location of the main office of a bank only with the banking commissioner’s approval, subject of course to the right under section 21 of judicial consideration and determination de novo. Decision nevertheless is planted upon unanimous view that the 1966 amendment, effecting as it does clear requirement of administrative approval, calls for vacation of both judgments below with remand for reconsideration in circuit of all presented issues in the light of that amendment. To this we add firm determination that no right in property is involved and that the plaintiff bank had before — as well as now — no vested right to a change of location of its main office.
Followed procedurally is Burlington Truck Lines v. United States, 371 US 156 (83 S Ct 239, 9 L ed 2d 207). There a three-judge court upheld an order of the interstate commerce commission granting a carrier’s application for leave to transport commodities between specified interstate points. Between the date of the Commission’s order and the date of decision by the three-judge court, Congress added a section to the scrutinized statute which in the Supreme Court’s view affected the reasons for each of the decisions below. This result followed (371 US 156, at 172):
“These intervening facts so changed the complexion of the case that (even putting aside the-considerations discussed above) the reviewing equity court, in the exercise of its sound discretion, should not have affirmed the order, as it did, but should have vacated it and remanded it to the commission for further consideration in the light of the changed conditions. See Ford Motor Co. v. NLRB, 305 US 364, 373, 374 [59 S Ct 301; 83 L ed 221, 229, 230]; Missouri, ex rel. Wabash R. Co., v. Public Serv. Com. 273 US 126, 130, 131 (47 S Ct 311; 71 L ed 575, 577); Gulf, C. & S. F. R. Co. v. Dennis, 224 US 503, 506-509, 32 S Ct 542, 56 L ed 860-862.”
Since section 21 as construed in the Dearborn Case requires no adversary proceeding or hearing before the commissioner and provides adequate due process in circuit with consideration de novo of all the rights of the plaintiff bank and of the public (the latter represented by the commissioner), we direct remand to the circuit court rather than to the commissioner. On remand that court will consider the bank’s respec tive applications anew in light of the 1966 amendment of section 39 and also of the responsibility and fitness requirements of preceding section 26 (CL 1948, § 487.26 [Stat Ann 1957 Rev § 23.754]), which last mentioned section should be read and applied with current section 39 to attain the broadly unitary purposes of the two sections. The circuit court may as a matter of discretion take such additional testimony as the parties may desire and, with or without such testimony but with appropriate findings of fact, will enter a new decision for or against plaintiff’s said applications. Thereupon the present record, together with such record as may be made on remand,will be certified to this Court for such further proceedings as may then be directed by order. No costs.
Kelly, Black, T. M. Kavanagh, Souris, and Adams, JJ., concurred.
Such say as Chief Judge Lesinski proposed by dissent; 3 Mich App at 219.
This paragraph of section 21 concludes with the sentence: “Any party shall have the right to appeal from sueh decree to the Supreme Court in the same manner as from othor chancery suits.”
The Burlington Case has caused the editors of eurrent American Jurisprudence to add this by supplement (2 Am Jur 2d Administrative Law § 757, “Effect of Change of Law,” p 657; eurrent pocket' supp. p 21) :
“On the other hand, it has been held that where the law is changed during the review proceedings the court should vacate the order based on the old law and remand the case to the administrative agency for consideration in light of the changed conditions.”
Continued from volume 378 Michigan. | [
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] |
Sherwood, J.
■ The plaintiffs in this case were merchant tailors and lived in Reed City. The defendants were engaged in lumbering business and lived in Missaukee county, and had their lumber camp about twenty miles northeast of Cadillac. Reed City is about twenty-seven miles south of Cadillac, on the Grand Rapids & Indiana Railroad. On the first day of November, the defendant Moore, being at the lumber camp, gave to the plaintiff Rothweiler the defendant’s check on Rice & Messmore’s Bank at Cadillac for $66, about 1 o’clock in the afternoon. Rothweiler immediately thereafter Avent to the Cadillac bank, arriving about 6 o’clock in the evening, and after the bank had closed for the day; and being unable to present the check before the opening of the, bank next morning, tried to obtain the money of parties in Cadillac, during the evening, on'the check, but was unable to do so; not, however, from any distrust of the bank’s ability to pay, it being in good repute.
Rothweiler bambeen absent from his business at his home in Reed City, about a week, and having pressing engagements at home, was obliged to leave Cadillac at 6 o’clock next morning, and before the opening of the bank, and did so. The next day was Sunday, and on Monday morning he placed the check in Loase’s Bank, at Need City, for collection, and on the following day was informed the check had been presented and payment refused; that the bank at Cadillac had failed on Monday, about 10 o’clock.
The defendants had $2500 on deposit in the Cadillac bank from the time the check was drawn up to the time of its failure. The defendants claim there was such negligence and delay on the part of plaintiffs in presenting the check as tó relieve them from liability on account of the failure of the bank.
On the trial the plaintiffs obtained a verdict in their favor, and had judgment. The circuit judge submitted the question of negligence in the presentation of the check, to the jury. There was testimony offered tending to excuse the delay, and the case was therefore properly submitted to the jury upon that, point, and the defendants’ first, third and fourth exceptions were not well taken. The defendants’ second request was substantially given to the jury; at least, so much thereof as was needful for their proper consideration of the question presented. The charge of the court was “full and well considered, and presents the law applicable to the case correctly.
In this case the check was given in a rural district, twenty miles distant from the place of payment, and not in time to reach the bank before it closed that day. Pressing business of plaintiffs prevented the holder from presenting it the following day, and the next day was Sunday, and on Monday morning he placed it in the local bank for collection. We think the delay shown, under the circumstances disclosed in the record, not unreasonable.
In cases where the parties to a check are doing business in the same city where the bank is located, the time within which the holder should present the instrument for payment seems to be very well settled, but in a case like the present the presentation must be made within a reasonable time, taking all the circumstances in consideration, and when no more time is taken than is fairly required in the usual and ordinary course of business, special inconvenience and special circumstances considered, the holder, in case of failure of the bank upon which the check is drawn, before presentation, should not be held to suffer the loss. Phœnix Ins. Co. v. Allen 11 Mich. 501; Nutting v. Burked 48 Mich. 241.
The judgment is affirmed.
The other Justices concurred. | [
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Sherwood, J.
This suit was brought to recover damages against the defendant for malicious prosecution. The plaintiff had been acting as agent of the defendant at East Saginaw, and in that capacity had collected some premiums which he refused to pay over when demanded by a special agent, the plaintiff claiming at the time the money was not due when demanded. Thereupon the plaintiff was complained of by a local agent named McClintock, residing at East Saginaw, and arrested for embezzlement. A hearing in the case was had before a magistrate and the plaintiff was discharged. He now brings his suit alleging that the arrest was authorized by defendant, and was unlawful, malicious and without probable cause. The defendant’s plea was the general issue. The plaintiff obtained a verdict at the circuit for $3070 and the defendant brings error.
The record contains the substance of all the evidence given upon the trial. Fifteen exceptions were taken to the rulings of the court in receiving or rejecting the testimony offered, one to the refusal of the court to give instructions to the jury, and one'to' the charge as given.
The evidence disclosed that the defendant company was located at Hartford, Connecticut; that H. M. Magill was the general agent of the defendant in Michigan and for the Western and Southern states, and had his office at Cincinnati; that he had the general charge of all the agencies and business of the company in Michigan in 1877 and 1878; that T. F. Spear was assistant general agent and also resided at Cincinnati; that H. II. Heaford, whose residence was at Jackson, was a special agent for the State of Michigan; that all agents were authorized to make collections and remittances for the company, and any agent might employ an attorney when specially authorized so to do by the general agent or Mr. Spear.
It further appears by the record that the plaintiff Turner and said McClintock had been in business together at East Saginaw, and some time previous ,-to the prosecution complained of their business relations had been dissolved, Mc-Clintock continuing to act as the local agent for the company at that city.
It further appears that there still remained due from the plaintiff to the company on the 11th day of January, 1818, a balance of about $50, and judgment was obtained a short time thereafter against the plaintiff and McClintock for such balance, and it was because of the non-payment of this balance when demanded that the criminal prosecution complained of was instituted.
The local agent, McClintock, made the complaint upon which the warrant was issued, and the case was prosecuted at his request in behalf of the people by Michael Brennan, a lawyer who had his office with Wisner & Draper and who had formerly been their law student and at that time occasionally received claims from their office to collect. The claim against the plaintiff had been sent to Wisner & Draper for collection by the company and they had turned it over to Brennan for that purpose. It further appears that Brennan in his correspondence with the plaintiff, in his efforts to collect, had signed the name of Wisner & Draper to his letters in which a criminal prosecution is alluded to, if not threatened.
The plaintiff claims that the defendant authorized the criminal prosecution against him, and seeks to hold it responsible for the acts of its local agents and attorneys at Saginaw, who he insists advised and took part in the criminal prosecution; and further claims that if the defendant did not authorize commencement of the prosecution, it subsequently ratified what the local agents did, and the defendant is therefore liable for the alleged illegal act. It is not claimed by the plaintiff that the criminal prosecution was authorized, aided or abetted, or even ratified, by the general office of the company, but by its general and special agents at Cincinnati, and by Heaford, its special agent in this State. Magill, Spear and Heaford all testified in the case, and all testified the prosecution was never authorized by them, or either of them, but on the contrary they were all opposed to it and that neither of them ever sanctioned, approved or ratified any act of the local agents or attorn ey, if any had been done for that purpose, and that none of their local agents had any general or special authority given them for such purpose.
It is further claimed by defendant that not only was no such authority given to their attorneys Messrs. Wisner & Draper by the company, but that said attornej’s never exercised such authority, and neither consented to nor approved of tSe prosecution complained of.
After the testimony in the case was closed, the circuit judge, on request of defendant’s counsel, submitted to the jury five requests for specific findings, which requests and findings appear in the record as follows:
“1st. Was plaintiff prosecuted criminally by any agent of defendant? Answer. Yes.
2nd. If you say yes to above, name the agent. A. Wisner & Draper, Heaford and Magill.
3rd. If you say yes to No. 1, state who, if any one, acting for defendant, authorized or directed the prosecution. A. Wisner & Draper, Heaford and Magill.
4th. Was the act of the person commencing the prosecution subsequently adopted or ratified by defendant’s agents ? A. Yes.
5th. If you say yes to 4th, state what agent so ratified or adopted it.- A. Heaford and Magill.”
It will be noticed that the jury found by their verdict that both Heaford and Magill not only prosecuted the criminal suit, but that the acts of McClintoek and Brennan in commencing it, were subsequently adopted and ratified by them.
These findings present three questions for our consideration, either of which decided in favor of defendant will render a new trial necessary: First. Could Magill and Heaford or either of them bind the defendant, so as to make it liable for the unlawful criminal prosecution of the plaintiff under the general authority of the one and the special authority of the other given by the company ? Second. Was there any evidence in the case tending to show that Magill prosecuted, or authorized or approved of the prosecution, of the plaintiff, criminally? Third. Was any part of the evidence tending to prove these facts improperly admitted by the circuit judge?
We think the first question must be answered.in the affirmative. The company had a legal existence in this State and was authorized to do business therein. It could only act through officers or agents. It had no general office here, and was therefore obliged, in transacting its business, to act through agents. There is no question but that Magill was empowered to act as such in this State. He was its general agent, and unless the contrary appears, must be held, within the territorial limits of his agency, invested with all the powers necessary or proper in conducting the business of a general officer of the company. Any other construction would be attended with great inconvenience and many times work injustice to those with whom the defendant had dealings. It would be intolerable indeed to hold that the defendant through its general agents could do an extensive and lucrative business with the citizens of our State, within its borders, and still not be amenable to its laws for the wrongs- and injuries it may have done to our people in prosecuting such business.
We have no doubt that Magill or his assistant Spear, under their general authority, might so far aid and abet a malicious prosecution in behalf of the company as to make the defendant liable in an action by the injured party therefor. Hid Magill do so in this case ?
The answer to this inquiry brings us to the consideration of the second question presented. We have looked carefully for the evidence that he or Spear knew of the commencement of this criminal suit, or of the intention to commence it, before it was instituted, or that Magill ever aided, abetted or in any manner approved of its prosecution after it was commenced, and have been unable to find it. Neither do we find any tending to show such facts, but on the contrary his testimony is to the effect that the criminal proceedings were commenced without his knowledge or consent, and the prosecution was never in any manner approved or countenanced by him. We think the finding of the jury upon this subject must be held erroneous, and that the record fails to furnish any evidence tending to support it.
Implied ratification is principally relied on in this case. Whether or not ratification can be implied by the acts of the agent when the act complained of could not have been lawfully done by the principal, and the consequences of which were legally beyond the control of both, is a question which we do not feel called upon to consider. With propriety we might close our discussion of the case here; but inasmuch as a new trial is to be had, we deem it our duty to consider a few exceptions under the third question stated.
The 1st, 2d and 3d assignments of error relate to the rulings of the court upon admitting testimony of those acting as agents of defendant before, establishing their authority so to do. This practice is frequently indulged in at the circuit; and while it relates to the order rather than to the competency of the proofs and is therefore discretionary with the trial court, the practice is not to be encouraged and should not be allowed unless special reasons exist therefor. We are not, however, prepared to say the course pursued in this case upon the trial was improper. It was proposed by plaintiff’s counsel to show the authority of the agent by circumstances, and as well by the actions as by the sayings of the principal, and in such cases the discretion of the circuit judge may be properly exercised when in good faith it shall be invoked. Campbell v. Sherman 49 Mich. 534.
It appears from the testimony that the criminal proceedings were commenced under the immediate advice of Brennan. It was not claimed that Brennan derived his authority from any officer or general agent of the company, but from Wisner & Draper, who were the company’s attorneys in the civil suit. The plaintiff, was permitted to show, against the ■objection of defendant’s counsel, what Brennan said and did, and that he wrote the plaintiff letters in the name of Wisner & Draper before making any proof of authority from them. This, we think, was carrying the discretion too far. As we have said, under special circumstances the acts of the agent and his sayings and doings, may be shown before the particular agency sought to be established is proved. But it is going beyond the reason for or necessity of the rule to extend it to sub-agents. The testimony of Brennan and the letter marked I, written by him, should not have been admitted until his authority had been shown. The objection of defendant’s counsel was well taken.
The court permitted two letters, written to Magill by Heaford, to be read in evidence against the objection of defendant’s counsel — to the first that it was irrelevant and immaterial ; to the second that it was written after the criminal prosecution had terminated — and the court, in connection with its ruling upon the objection, stated : “ I think it is ■competent. This man [meaning Heaford] is a part of the insurance company.” This was clearly error. The court stated, as a fact, more even than the plaintiff asked the jury to find. The plaintiff only asked the jury to find that Heaford was an agent, but the court relieved them entirely upon that point by saying he was a part of the company itself. This could not have failed to give the jury wrong impressions of what was necessary to be shown in order to make Heaford’s statements competent evidence in the case. It was substantially saying to the jury that whatever Heaford said or did was authorized.
One of the letters above alluded to was put in evidence on the direct examination of a witness for the plaintiff as tending to show ratification by Magill of the act complained of, and upon the cross-examination the defendant sought to put before the jury a reply to the letter by Magill, in which he clearly states that the defendant disclaimed all connection whatever with the criminal proceedings, and further says the suit was without the defendant’s instruction or consent. The letter put in evidence by the plaintiff was written the 12th of March, and the reply thereto the 13th. The court refused to let the reply go to the jury. This was error. If the first was admissible, certainly common fairness required that the other should have been received. The latter rebutted the inferences sought to be drawn from the first.
No error was committed by the court in refusing to submit to the jury the special request to find, contained in the 15th assignment of error. The request does not call for a finding of any particular fact, but presuming the jury will do so, asks them to make report to the court of the testimony upon which they reached their conclusions. Such a request is improper under the statute.
On the direct examination of Mr. Heaford by plaintiff, the witness testified he received a letter and telegram from Magill to go to East Saginaw and look after defendant’s claim, which he regarded as instructions. On cross-examination, counsel for defendant asked the following question: “Did that telegram direct you to come to East Saginaw and be a witness in the criminal case against Mr. Turner ?” This was objected to as leading, and the objection sustained. This was error. The question was within the rule of cross-examination, and the witness should have been allowed to answer.
It is unnecessary to consider the exceptions further. The charge having been based upon testimony improperly received, could hardly fail to be erroneous.
The judgment must be reversed and a new trial granted.
The other Justices concurred. | [
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M. J. Kelly, J.
Defendant pled guilty to breaking and entering a store with intent to commit a larceny, MCL 750.110; MSA 28.305, and larceny in a store, MCL 750.360; MSA 28.592. He was sentenced to a term of from 7 to 20 years on the breaking and entering charge and to a term of from 4 to 8 years on the larceny charge, the two sentences to run concurrently. Defendant appeals as of right.
Defendant argues first that the plea-taking court erred by providing defendant with a printed eight-page statement of rights pamphlet rather than orally explaining defendant’s rights to him. GCR 1963, 785.7 directs a plea-taking court to advise a defendant of certain rights and possible penalties when the defendant pleads guilty or nolo contendere. The transcript of defendant’s plea-taking proceeding has been carefully examined. We find the court complied with GCR 1963, 785.7 without regard to the printed rights form. Thus, defendant’s argument under this issue is without merit. Cf. People v Lockett, 111 Mich App 405; 314 NW2d 640 (1981), rev’d 413 Mich 868; 318 NW2d 31 (1982).
Defendant argues next that his convictions for both breaking and entering a store with the intent to commit a larceny and larceny in a store violate his constitutional guarantees against double jeopardy. Larceny in a store is a cognate lesser included offense of breaking and entering a store with the intent to commit a larceny. See People v Kamin, 405 Mich 482, 496; 275 NW2d 777 (1979); accord, People v Brager, 406 Mich 1004; 280 NW2d 826 (1979). Cognate lesser included offenses share several elements of the greater offense, are of the same class or category, but may contain some elements not found in the higher offense. People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). The fact that the lesser offense has an element not included within the greater does not preclude the lesser from being included within the greater. Ora Jones, supra, pp 388-389.
In Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), the Supreme Court dealt with the federal and Michigan double jeopardy rules. That case makes clear that in Michigan there are two different double jeopardy protection tests that must be applied. The first is a federal test, enunciated in Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), and Iannelli v United States, 420 US 770; 95 S Ct 1284; 43 L Ed 2d 616 (1975). That test looks to whether each offense requires proof of a fact which the other does not, notwithstanding a substantial overlap in the proof offered to establish the crimes. Iannelli, supra, p 785, fn 17. Conviction both of breaking and entering a store with the intent to commit a larceny and of larceny in a store does not violate this federal standard. Breaking and entering a store with the intent to commit a larceny requires proof that the defendant broke and entered with the necessary intent. It does not require that a larceny actually occurred. Larceny in a store, however, requires that the larceny actually occurred. Conversely, there is no requirement that there be a breaking and entering.
In Michigan, however, a second test must be applied. Michigan courts focus on the factual proofs involved. Wayne County Prosecutor, supra, p 399. When tried for an action which includes lesser included offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense. People v Martin, 398 Mich 303, 309; 247 NW2d 303 (1976). Thus, under Michigan law rather than federal, if, factually, the convictions are based on proof of a single act, the separate crimes are held to consist of nothing more than a greater crime and certain of its lesser included offenses. See People v Jankowski, 408 Mich 79, 86; 289 NW2d 674 (1980). In such a case, multiple convictions cannot be allowed to stand. Jankowski, supra, p 86.
"For purposes of the double jeopardy analysis, as a matter of state constitutional law, the question is not whether the challenged lesser offense is by definition necessarily included within the greater offense also charged, but whether, on the facts of the case at issue, it is.” Jankowski, supra, p 91.
Under Michigan’s factual test, the convictions in the instant case of breaking and entering a store with the intent to commit a larceny and larceny in a store violate the protection against double jeopardy. A presumption of intent to commit a larceny does not arise solely from proof of a breaking and entering. People v Palmer, 42 Mich App 549, 552; 202 NW2d 536 (1972). Rather, there must be some circumstance reasonably leading to the conclusion that a larceny was intended. Palmer, supra, p 552. When larceny in a store is charged along with breaking and entering a store with the intent to commit a larceny, it is the completed larceny that is being used as the "some circumstance reasonably leading to the conclusion that a larceny was intended”. The only factual evidence that defendant intended to commit a larceny when he broke and entered is his completed larceny. As such, the two convictions are based on proof of a single act. Under Michigan law, such proof cannot sustain double convictions. See Jankowski, supra, p 86.
Defendant’s conviction for breaking and entering a store with the intent to commit a larceny is affirmed. His conviction for larceny in a store is vacated.
W. S. White, J., concurred.
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Cynar, J.
On March 23, 1981, defendant was convicted by a jury of criminal sexual conduct in the first degree, i.e., sexual penetration of a female at least 13 but less than 16 years of age and a member of the same household. MCL 750.520b(l)(b); MSA 28.788(2)(l)(b). On March 31, 1981, defendant was sentenced to five years probation and assessed costs of $75 per year. Defendant appeals as of right.
The prosecutor, in the course of cross-examining defendant, made inquiry into defendant’s past business ventures, how defendant made a living, and why a place of business was closed. Defense counsel’s objections were overruled. Over further objection, the prosecutor was permitted to ask defendant the following questions and received the following answers:
"Q. Now, isn’t it true that when you closed that place of business in 1977, that you owed the IRS over a thousand dollars and that they were about to seize the assets and that they were going to padlock that business? And before that could happen, you moved everything out in the middle of the night?
"The Witness: No, it’s not true.
"Mr. Kriazman [defense counsel]: What was the answer? I didn’t hear it.
”The Witness: No.
"Mr. Lehto [prosecutor]: I didn’t finish the question.
"The Court: He didn’t finish the question.
"Q. (by Mr. Lehto): Isn’t it true that the reason you closed that place of business was because the IRS was about to seize the assets? And you had removed the assets from the location?
"A. No, sir.”
Over further objections, the prosecutor continued the examination:
”Q. (by Mr. Lehto): And isn’t it true, Mr. Adams, that to this date, you have not paid those back taxes.
"A. No.
"Q. And isn’t it true that before you moved out of that place in '77 that you promised her that you were going to buy the building?
"The Witness: No.
”Q. (by Mr. Lehto): And isn’t it true that you used that promise as a tool to delay paying your rent?
"The Witness: No.
”Q. (by Mr. Lehto): And isn’t it true that to this date, you still owe her three thousand six hundred dollars in rent?
"A. No.
”Q. And isn’t it true that you are a few months behind in the rent in your present location?
"The Witness: No.”
Over further objections, the prosecutor asked defendant whether he had broken into the building adjacent to his place of business and attached the gas line to his building to avoid paying a gas bill, whether he had broken into his old place of business and charged a friend’s son with the crime in order to free the friend to marry him, and whether he had refused to return stereo equipment which he had borrowed from Deborah Hayden.
Defendant testified that he did not have sexual relations with the complainant and that the complainant was being trained to be a secretary. Defendant also testified that he never had a lock on his office door. James White, who was defendant’s friend and business partner, testified during cross-examination that he never told the complainant’s sister after defendant’s arrest that defendant had been alone many times in his office with the complainant behind a locked door. White also testified that defendant never had a lock on the door to his office.
After the defense rested, the prosecutor requested permission to call a rebuttal witness. Defense counsel objected, noting that the prosecutor intended to recall the complainant’s sister, and argued that her testimony would violate the order of sequestration. The prosecutor stated that he did not know he was going to recall the witness until he heard all the testimony and that he just wanted her to testify about what had happened when defendant’s partner came to the sister’s office the day after defendant was arrested. The trial judge stated that he would allow the testimony for that limited purpose.
The complainant’s sister testified on rebuttal that defendant’s partner came to see her the day after defendant was arrested and told her that he remembered times when defendant had the complainant locked in his office.
The prosecutor also asked the rebuttal witness: "And did he say anything about whether or not he believed the charges?” Defense counsel objected, and the prosecutor argued that the partner’s belief in defendant’s guilt was part of the statement that the prosecutor asked him about on cross-examination. The trial court ruled to allow the statement for the limited purpose that it was made but not as to its truthfulness. The witness then testified: "He said it was hard to believe. And he could think of different incidents.”
Defendant contends the prosecutor’s cross-examination was a wholesale and purposeful violation of the well-settled rule that the accused may not be impeached by prior misconduct not amounting to a conviction. People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973).
The prosecutor laments that the defendant was not questioned about prior arrests or charges which did not result in convictions, defendant was merely asked whether it was true that he engaged in the conduct specified. In each instance, defendant denied doing the act questioned. It is argued that such cross-examination was proper under the Michigan Rules of Evidence, 608(b), because it was limited to questions that were probative of the witness’s character for truthfulness or untruthfulness and, thus, the admission of the cross-examination testimony was subject to the discretion of the trial court.
MRE 608 provides:
"Evidence of Character and Conduct of Witness.
"(a) Reputation evidence of character. The credibility of a witness may be attacked or supported by evidence of reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.
"(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
765
"The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.”
Even with the benefit of the broad but elusive phraseology of Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), concerning abuse of discretion, the prosecution is not afforded a saving grace from reversal for impeaching defendant on cross-examination with alleged prior bad acts. "Evidence” is the key word in MRE 608. In this case, the record is barren of any foundation for the questions asked on cross-examination which are alleged to have a bearing on defendant’s character. It would appear from the record that there was no hearing in the absence of the jury where the prosecutor attempted to show a foundation for his questions. The evidence, if it could be construed as "evidence”, consisted solely of the questions by the prosecutor. This is not sufficient. The situation may be comparable to a cross-examiner asking a witness when he last beat his wife, when in fact the witness had never beaten his wife. To expect absolute absence of error in a trial is not realistic. In this case, however, not one or several but a series of questions were asked concerning collateral matters premised on the contention that they had a bearing on the truthfulness of defendant. There is a question, even if defendant had answered some of the questions in the affirmative, whether they would have any bearing on the character of the witness.
The only issue for the jury’s determination was whether they believed defendant committed the charged offense. There were no eyewitnesses to the commission of the alleged offense. The trial judge informed the jury that the questions asked by the prosecutor were not to be considered as evidence. Based on the record, this was not sufficient to overcome the error in the court’s ruling on the issue in this case. We find the trial court abused its discretion.
Defendant also argues that the trial judge abused his discretion by allowing the complainant’s sister to testify as a rebuttal witness in violation of a sequestration order, that the testimony was improper testimony, and that the rebuttal testimony was improper because it amounted to an attempt to show the jury that defendant’s business partner believed that defendant was guilty.
Whether to exclude the testimony of a witness who has violated a sequestration order is within the trial judge’s discretion. People v Cyr, 113 Mich App 213, 231; 317 NW2d 857 (1982), lv den 414 Mich 888 (1982); People v Boose, 109 Mich App 455, 474-475; 311 NW2d 390 (1981). There was no abuse of discretion in permitting rebuttal testimony in this case.
The rebuttal testimony was relevant and material to the refutation of evidence bearing on an issue properly raised in the case. Thus, the rebuttal testimony was admissible. See People v DeLeon, 103 Mich App 225, 228-229; 303 NW2d 447 (1981), lv den 412 Mich 935 (1982); People v Bennett, 393 Mich 445, 448-449; 224 NW2d 840 (1975).
Defendant additionally argues that part of the rebuttal testimony was incompetent because it was an attempt to show the jury that defendant’s partner believed the charge against defendant.
In People v Parks, 57 Mich App 738, 750; 226 NW2d 710 (1975), this Court recognized that a witness may not give the jury an opinion as to the credibility of another witness or the guilt or innocence of the accused. The credibility of witnesses and the guilt or innocence of the accused are solely within the province of the jury. People v Walker, 40 Mich App 142, 145; 198 NW2d 449 (1972), relying on Evans v People, 12 Mich 27 (1863).
In People v Row, 135 Mich 505, 507; 98 NW 13 (1904), although defense counsel failed to object when the prosecutor had established the witness’s belief in the complainant’s story, the Supreme Court held:
"This, however, did not make the testimony competent, and, when the attention of the court was called to it, he should have so held, and instructed the jury accordingly.”
In this case, when the prosecutor asked the rebuttal witness if defendant’s partner said anything as to whether he believed the charges, defense counsel objected. The objection should have been sustained. The first part of the answer appears favorable to defendant, and the last part of the answer appears to relate to other incidents. A question remains on what effect, if any, the answer may have had on the jury’s determination. We do not believe this error, based on the record herein, constitutes manifest injustice requiring reversal.
Reversed. | [
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Per Curiam.
Defendant was charged with first-degree murder, MCL 750.316; MSA 28.548, and felony-firearm, MCL 750.227b; MSA 28.424(2), in September 1979, and arrested on those charges October 28, 1979. On February 13, 1981, defendant moved to quash the information because the people failed to bring him to trial within 180 days as required by statute, MCL 780.131; MSA 28.969(1). On June 7, 1981, the trial court granted the motion. The people appeal by leave granted.
Defendant was arraigned in this case on October 29, 1979, along with codefendant Robert Partee. The preliminary examination was held November 15, 1979. The trial court set a trial date of March 3, 1980. On December 21, 1979, defendant was sentenced in a separate case to 20 to 30 months in prison for attempted carrying a concealed weapon. After December 21, 1979, the prosecutor did not take any further action on this case for 384 days or until January 8, 1981. Instead, the prosecutor completed proceedings against defendant, codefendant Partee, and three other defendants on other pending first-degree murder charges stemming from the much-publicized Democratic Club triple beheading murders.
MCL 780.131; MSA 28.969(1) provides a 180-day period during which a state prison inmate must be brought to trial on an outstanding charge. The sanction for violation of this 180-day rule is the trial court’s loss of jurisdiction and dismissal of the charge with prejudice, MCL 780.133; MSA 28.969(3). In People v Hill, 402 Mich 272, 280-281; 262 NW2d 641 (1978), the Court held that the 180-day period begins to run with the defendant’s incarceration or detention when there is an outstanding warrant or complaint pending against the defendant and the prosecutor knows or should know that the defendant is so incarcerated. Thus, the 180 days began to run in this case on December 21, 1979.
The prosecutor does not necessarily violate the 180-day rule by failing to complete or even commence trial within that time period. Instead, the statute mandates that a prosecutor take good-faith action on the case within 180 days in an effort to proceed promptly to trial. People v Hill, p 281; People v Castelli, 370 Mich 147, 153; 121 NW2d 438 (1963). The prosecutor has the burden of establishing good-faith action that complies with the 180-day rule. Hill, p 282. If the prosecutor does show such good-faith action, jurisdiction is not lost unless the initial action is followed by an inexcusable delay which tends to show that the prosecutor did not intend to bring defendant promptly to trial. People v Hendershot, 357 Mich 300, 303-304; 98 NW2d 568 (1959); People v Forrest, 72 Mich App 266; 249 NW2d 384 (1976). A delay reasonably necessary to try an intervening case against the defendant does not necessarily militate against a finding of good-faith prosecutorial action. Hill, p 282.
In Hill, proceedings in the defendant’s assault charge were adjourned until trial was completed on an intervening murder charge. The defendant moved to quash the information on the assault charge because the prosecutor failed to bring him to trial for that offense within 180 days. The trial court denied the motion. The defendant was subsequently convicted of the assault. This Court affirmed that conviction. 22 Mich App 91; 177 NW2d 220 (1970). The Supreme Court remanded for an evidentiary hearing.
"The trial judge denied the motion without the prosecutor establishing good-faith action to bring this matter to trial, apparently holding that adjournment of trial to permit another trial was reasonable per se and adequate compliance with the statute without regard to whether the intervening trial was unreasonably delayed. We do not agree that the delay here was necessarily reasonable, and accordingly remand for the purpose of establishing its reasonableness and that the prosecutor took the required good-faith action to ready this case for trial.” People v Hill, p 282. (Emphasis added.)
In People v Wright, 89 Mich App 244; 280 NW2d 836 (1979), remanded for an evidentiary hearing in lieu of granting leave to appeal, 408 Mich 942 (1980), lv den 411 Mich 985 (1981), this Court addressed a claimed violation of the 180-day rule where the prosecutor argued that proceedings on an intervening charge justified the delay. This Court found the nine-month delay between the defendant’s incarceration on a related charge and trial on his pending charge unreasonable. The intervening actions consisted of two pretrial conferences held on the same day before the same judge. Furthermore, all the charges pending against the defendant were similar and developed from the same investigation. This Court found that the proceedings in the case were "marked by periods of inaction, interrupted only by the setting and postponement of the trial date without reason given”. Wright, p 253.
When the prosecutor petitioned for leave to appeal Wright, the Supreme Court said: "[W]e remand for an evidentiary hearing at which the trial court shall make findings of fact and, considering this case and the other cases pending against defendant at the time, determine whether or not the prosecutor took 'good faith action’ within 180 days to ready the case for trial * * 408 Mich 942 (emphasis added).
Thus, a prosecutor may establish that a delay beyond 180 days is reasonable if the prosecutor establishes that he took good-faith action to bring an intervening charge against defendant promptly to trial and thereafter acted promptly to bring the pending case to trial.
At the hearing on defendant’s motion to quash, the prosecutor in charge of both this case and the Democratic Club triple beheading case said that he could demonstrate the people’s good-faith efforts to bring this case to trial without calling witnesses. The prosecutor said that he deliberately chose to proceed with the beheading case because (1) all five of those defendants were in jail, (2) the beheading case was much more complex than this case, and (3) the disposition in the beheading case might determine whether the people would proceed with this case.
The prosecutor then detailed the actions taken in the beheading case. The beheading case commenced on March 3, 1980, the date originally set for trial in this case. That trial against four of the beheading defendants, including defendant and Partee, ended in a mistrial 7-1/2 weeks later on April 23, 1980. Following the mistrial, one beheading defendant, Frank Usher, was tried separately between May 19 and June 24, 1980. The pretrial and jury selection for the remaining beheading defendants began on June 16, 1980. However, on June 27, 1980, defendant’s motion to remove his counsel was granted and the trial judge severed his trial. Retrial for two beheading defendants, including codefendant Partee, was held between June 27, 1980, and August 6, 1980. Defendant’s separate trial in the beheading case began on November 24, 1980. On January 7, 1981, a jury acquitted defendant.
When ruling on the defendant’s motion to quash, the trial court recognized that the beheading case was complex and that the facts of both cases did not overlap or intertwine. The trial court did not find that the people unreasonably delayed the beheading case. In support of its finding that the 180-day rule had been violated, the trial court found that the delay in this case was the result of the people’s conscious choice not to break the sequence of the beheading case. The trial court granted the motion to dismiss because the people took no action at all on this case between December 21, 1979, and January 8, 1981.
We find this case distinguishable from People v Wright, supra, and reverse. The beheading case, due to its complexity, involved three separate trials, one to two months long. Those trials required considerable preparation by the people. There was no factual relationship between this case and the intervening beheading case. Unlike the extensive delays taken in the intervening case in Wright, there were no similarly extensive delays or inaction during the intervening beheading case. Therefore, we find that the prosecutor established at the hearing on the motion to quash that the delay in excess of 180 days in bringing defendant to trial in this case was reasonably necessary to conduct the intervening trial.
Reversed and remanded.
MCL 780.131; MSA 28.969(1) provides:
"Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for a final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibil ity of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.”
This section states:
"In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” | [
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Per Curiam.
Plaintiffs commenced this action on January 17, 1980, against Phyllis and Cletus Simon, Anna Mae Woods, and Timmy Wayne Baker. The action against Phyllis and Cletus Simon was settled, and the case against them was dismissed on May 7, 1982. Defendants Woods and Baker filed motions for summary judgment. Defendant Woods’ motion for summary judgment was denied. From an order granting summary judgment to defendant Baker on the ground that there was no genuine issue of any material fact, GCR 1963, 117.2(3), plaintiffs appeal as of right.
The complaint alleged that defendant Woods’ vehicle, which was northbound on Telegraph Road, struck the Baker vehicle when the Baker vehicle was backing out of a private driveway onto Telegraph Road. At the time of that collision, plaintiff Gary Lynn Deaton was a passenger in defendant Baker’s vehicle. Following that collision, plaintiff Gary Lynn Deaton was a pedestrian, inspecting the damage caused in that accident when he was struck by the southbound vehicle of defendant Simon. Concerning defendant Baker, the plaintiffs’ complaint, before alleging violation of a duty by Baker, states the violation of common law and statute, including by way of illustration, not of limitation, the following duties on the part of Baker:
"a. Driving without due caution (MSA 9.2326);
"b. Driving at a speed and under circumstances as to be unable to stop within the assured clear distance ahead (MSA 9.2327);
"c. In negligently failing to come to a stop before entering or crossing a through highway (MSA 9.2351);
"d. In failing to come to a full stop before entering or crossing a highway from a private road or driveway and yielding the right-of-way to all vehicles approaching on the highway (MSA 9.2352);
"e. By driving upon the highway carelessly and heedlessly in willful disregard to the rights and safety to plaintiff (MSA 9.2326).”
On June 3, 1981, defendant Baker filed a motion for summary judgment under GCR 1963, 117.2(3), contending that there was no genuine issue as to any material fact based on the alleged breach of duty by defendant Baker. It is noted that the motion for summary judgment was filed before a pretrial conference had taken place.
There is no factual dispute that plaintiff did not sustain injury in the Baker/Woods accident, the first collision.
Plaintiffs’ response to Baker’s motion for summary judgment was that he was injured as a result of the Baker/Woods accident because, had the Baker/Woods accident not occurred, the second accident, between Baker and Simon, would not have taken place. Further, there was a question of fact for the jury as to whether defendant Baker had an opportunity to remove his vehicle from the traveled portion of the highway.
At the motion hearing, it was argued that on May 20, 1978, at about 9:45 p.m., plaintiff Gary Deaton was a passenger in defendant Baker’s vehicle when it was involved in an accident with defendant Woods’ vehicle. Telegraph Road at that location was a three-lane road with one northbound lane, one southbound lane, and a center lane for turning. Defendant Baker backed his vehicle out of a private drive in an easterly direction onto Telegraph Road. The Woods vehicle was traveling northbound in the center turning lane when it collided with the Baker vehicle. The Woods car stopped in the center lane about three car lengths north of the Baker car with its headlights and left turn signal on. Defendant Baker left his car at least partially blocking the southbound lane, without any lights on, while he walked over to the Woods vehicle to discuss the accident. Plaintiff Gary Deaton got out of the car to observe the damage to the Baker car. Plaintiff Gary Deaton re-entered the car to activate the emergency flashers. Unable to locate the switch, he exited from the vehicle and called to defendant Baker to return and turn the flashers on. Defendant Baker indicated to plaintiff Gary Deaton that he should wait a minute.
Two to five minutes after the first collision, the southbound Simon vehicle hit plaintiff Gary Deaton, thrusting him against the Baker vehicle which was stopped in the road. Defendant Simon was momentarily blinded by the Woods vehicle headlights and did not see the Baker vehicle blocking the southbound lane until it was too late to avoid the collision. Plaintiff Gary Deaton, who was standing behind the Baker car, was pinned between the two cars, resulting in the loss of a leg in the second collision.
Defendant Baker argued at the hearing on the summary judgment motion that there was no proximate cause between the alleged negligence causing the first accident and the injuries plaintiff suffered in the second accident. Plaintiffs’ counsel argued that, if it were not for the Baker/Woods accident, the Simon/Baker accident would not have happened. Plaintiffs’ counsel also argued that the Baker vehicle was blocking at least a part of the southbound lane for some two to five minutes, the period of time which elapsed between the first and second accident. It was contended that enough time passed for the Baker car to have been moved out of the way. The deposition of a police officer indicated that there was no reason why the Baker car could not have been moved off the road.
GCR 1963, 117.2(3) provides that summary judgment may be granted where "there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law”. In Partrich v Muscat, 84 Mich App 724, 730-731; 270 NW2d 506 (1978), this Court set forth the standard governing review of a grant or denial of a motion for summary judgment under GCR 1963, 117.2(3):
"A motion for summary judgment which is based on GCR 1963, 117.2(3) is designed to test whether there is factual support for a claim. Crowther v Ross Chemical & Mfg, supra [42 Mich App 426; 202 NW2d 577 (1972)].
"When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). Before the judgment may properly be granted the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Rizzo v Kretschmer, supra. The motion has the limited function of determining whether material issues of fact exist. The trial court must carefully avoid making findings of fact under the guise of determining that no issues of material fact exist.” (Footnote omitted.)
Summary judgment has generally been held to be inappropriate in negligence actions. Miller v Miller, 373 Mich 519; 129 NW2d 885 (1964); Gamet v Jenks, 38 Mich App 719; 197 NW2d 160 (1972).
"It is because the question of negligence is a question of fact and not of law and because its existence depends upon conformance with or violation of standards of behavior peculiarly within the special province of a jury to determine, that the summary judgment procedures of GCR 1963, 117.2(3), rarely will be applicable to a common-law negligence case.” Miller, supra, p 524.
Proximate cause is a factual issue to be decided by the trier of fact. Kurczewski v State Highway Comm, 112 Mich App 544, 552; 316 NW2d 484 (1982); Hall v Dep’t of State Highways, 109 Mich App 592, 603; 311 NW2d 813 (1981); Michigan Sugar Co v Employers Mutual Liability Ins Co of Wisconsin, 107 Mich App 9, 14; 308 NW2d 684 (1981). However, the question of proximate cause may properly be determined by summary judgment where all reasonable people would agree on the conclusion. Davis v Thornton, 384 Mich 138, 142-143, 146; 180 NW2d 11 (1970); Paparelli v General Motors Corp, 23 Mich App 575; 179 NW2d 263 (1970), lv den 383 Mich 826 (1970).
The negligence alleged in the complaint against defendant Baker is directed to the first accident. Defendant Baker’s negligence in the first accident, if so determined, as a matter of law cannot be a proximate cause of plaintiff’s injuries resulting from the second accident, even though, as plaintiffs’ counsel argued, the second accident would not have occurred had it not been for the first accident having happened.
Defendant Baker is correct in his assertion that there existed a hiatus in essential proof connecting the negligence of defendant Baker in the first collision, accepted as pled, and plaintiff’s eventual injury in the second collision. We do not agree with plaintiffs’ counsel that the motion for summary judgment should have been denied based on the argument that the second accident would not have taken place had it not been for the first accident having happened.
In any case, having expressed ourselves as we have, the motion for summary judgment should not have been granted. It was additionally argued that there was a question of fact for the jury as to whether defendant Baker had an opportunity to remove his vehicle from the traveled portion of the highway. The Baker vehicle was blocking at least a part of the southbound lane for some two to five minutes between accidents, during which time the Baker car could have been moved out of the way. A deposition of a police officer indicated there was no reason that the Baker vehicle could not have been moved off the road.
Whether defendant Baker was negligent in leaving his car blocking the highway after the accident with no lights on and, if negligent, whether the negligence was a proximate cause of plaintiffs injuries are questions of fact on which reasonable people could differ. Plaintiffs should have been given an opportunity to amend their complaint.
The trial court erred in granting summary judgment in favor of defendant Baker. Reversed and remanded. | [
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Per Curiam.
Defendant, together with a codefendant, pled guilty to armed robbery, MCL 750.529; MSA 28.797. Defendant appeals, claiming that there was an insufficient factual basis to support his plea, that the trial court failed to inform him that he could not receive probation, and that the court failed to inform him of the mandatory minimum sentence for armed robbery.
The record belies defendant’s contention that insufficient facts were elicited by the trial court to support his guilty plea. One who aids and abets the commission of a crime is chargeable as a principal. People v Spry, 74 Mich App 584; 254 NW2d 782 (1977), MCL 767.39; MSA 28.979. An inculpatory inference could reasonably be drawn by a jury from the facts admitted by the two defendants, enabling the trial court to accept defendant’s plea.
However, in taking defendant’s plea, the trial court failed to inform defendant specifically that he could not statutorily receive probation and did not tell defendant the minimum sentence he could receive for the offense to which defendant pled guilty.
GCR 1963, 785.7(1) provides that the court shall tell a defendant:
"(d) the mandatory minimum sentence, if any, for the offense;
"(f) if the plea is to murder, armed robbery or treason, he cannot be placed on probation * *
In People v Jones, 410 Mich 407, 412; 301 NW2d 822 (1981), the Supreme Court stated that "there must be strict compliance with Rule 785.7(1), subds (b) and (d)”. In the instant case, although the court informed defendant of the maximum statutory sentence, it did not tell defendant that the mandatory minimum sentence was "any term of years” or that he could not be placed on probation. Thus, we are constrained to reverse and remand, even though defendant unequivocally was told that he was to receive a prison term as part of his sentence bargain.
Reversed and remanded for further proceedings. | [
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Per Curiam.
On April 10, 1980, defendant, John William Biegajski, was convicted as charged by a Wayne County jury of first-degree criminal sexual conduct, in violation of MCL 750.520b(l); MSA 28.788(2)(1), cruelty to a child, in violation of MCL 750.136; MSA 28.331, and torture of a child, in violation of MCL 750.136a; MSA 28.331(1). After being sentenced to not less than 4-1/2 years nor more than 12 years on the criminal sexual conduct count, not less than 2 years nor more than 4 years on the child cruelty count, and not less than 4 years nor more than 10 years on the child torture count, the sentences to be served concurrently, defendant appeals his convictions as of right.
The victim, the son of defendant’s 18-year-old girlfriend, was two years old at the time of the offenses. After living together at various residences for about five months, defendant, the child, and the child’s mother moved to a Westland home in November of 1979. Soon thereafter, defendant, although not the child’s father, began to administer discipline in the form of severe beatings and slappings.
The victim’s mother testified that defendant exercised control over her son. She stated that defendant would vent his anger by assaulting the child and that these incidents occurred between November 15 and December 22, 1979.
At some point during the five-week period at the Westland home, the child’s mother discovered that her son inadvertently had cut his penis while zipping up his pajamas. When she attempted to apply ointment to the wound, defendant interfered and applied his own "treatment”, which consisted of having the child lié naked on the bathroom floor while defendant poured rubbing alcohol over the child’s penis and groin area. Repeated dousings of alcohol resulted in the formation of scabs and chemical burns on the child’s penis, scrotum, and groin area.
Also testifying at trial was the parties’ physician, D. F. Hopkins. Dr. Hopkins testified that his examination of the child during the latter portion of December 1979, revealed that the child sustained chemical burns on the penis and inner thighs, as well as bruises on the abdomen, ear, buttocks, back, and chest. Upon further examination, Dr. Hopkins discovered that an object had been inserted into the victim’s rectum, causing a tearing of the sphincter muscle and damage to the anal area.
On appeal, defendant raises five issues. First, he maintains that the trial court erred by allowing an arresting officer to testify, over defense counsel’s objection, concerning the facts surrounding defendant’s arrest on January 6, 1980.
The arresting officer, Lennis Hayes, testified that when he and his partner arrived at defendant’s residence to effect the arrest, they discovered that defendant was hiding from them in the basement. When the officers informed defendant that they had a warrant for John Biegajski’s arrest, defendant lied to them about his identity. In testifying regarding the events surrounding the arrest, defendant explained that he concealed himself from the officers because he thought they were investigating him regarding a stolen automobile.
The trial court gave the following charge to the jury concerning the foregoing incident:
"Members of the jury, there has been some evidence that the defendant attempted to hide immediately before he was arrested. You should first determine whether you believe the testimony and whether you believe that such testimony establishes that the defendant was running away or either hiding. Such evidence is not enough to convict or prove that the defendant committed a crime. It may point to panic, mistake, or fear equally as well. It is, however, a circumstance which you may consider in weighing the evidence in which you may find shows a consciousness of guilt.”
The trial court did not err by allowing Officer Hayes to testify pertaining to defendant’s secretive actions during the arrest. Evidence of an attempt to avoid arrest and flight in a criminal case is relevant, material, admissible, and can lead to an inference of guilt.
Defendant next claims that conviction of both child cruelty and child torture violates the double jeopardy prohibitions of the United States and Michigan Constitutions. Defendant asserts that the two convictions were based on the same acts and, consequently, he was subjected to multiple punishment for one offense.
Among other things, the Fifth Amendment guarantee against double jeopardy safeguards against multiple punishments for the same offense. In Iannelli v United States, the Supreme Court set forth the test applicable to multiple punishments:
"The test articulated in Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), serves a generally similar function of identifying congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction. In determining whether separate punishment might be imposed, Blockburger requires that courts examine the offenses to ascertain 'whether each provision requires proof of a fact which the other does, not.’ * * * As Blockburger and other decisions applying its principle reveal, * * * the Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. See Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958). We think that the Blockburger test would be satisfied in this case. The essence of the crime of conspiracy is agreement, * * * an element not contained in the statutory definition of the § 1955 [18 USC 1955] offense. In a similar fashion, proof of violation of § 1955 requires establishment of a fact not required for conviction for conspiracy to violate that statute. To establish violation of § 1955 the prosecution must prove that the defendants actually did 'conduct, finance, man age, supervise, direct, or own all or part of an illegal gambling business.’ § 1955(a). The overt act requirement in the conspiracy statute can be satisfied much more easily. Indeed, the act can be innocent in nature, provided it furthers the purpose of the conspiracy.” (Citations omitted.)
MCL 750.136; MSA 28.331, the child cruelty statute, provides in pertinent part:
"Any parent or guardian or person under whose protection any child may be, who cruelly or unlawfully punishes, or wilfully, unlawfully or negligently deprives of necessary food, clothing or shelter, or who wilfully abandons a child under 16 years of age, or who habitually causes or permits the health of such child to be injured, his or her life endangered by exposure, want or other injury to his or her person, or causes or permits him or her to engage in any occupation that will be likely to endanger his or her health, or deprave his or her morals or who habitually permits him or her to frequent public places for the purpose of begging or receiving alms, or to frequent the company of or consort with reputed thieves or prostitutes, or by vicious training depraves the morals of such child, shall, upon conviction, be deemed guilty of a felony.”
MCL 750.136a; MSA 28.331(1), the child torture statute, provides:
"Any parent or guardian or person under whose protection or control any child may be, who tortures such child, shall be guilty of a felony and may be punished by imprisonment for not more than 10 years.”
The elements of the offense of cruelty to a child under the portion of the statute with which defendant was charged are (1) defendant was an individual, such as a parent, guardian, or camp counselor, who was responsible for the protection of a child, and (2) defendant punished the child in a cruel or unlawful manner.
The child torture statute, unlike the child cruelty statute, does not contain the word "punish”. Rather, the infliction of torture upon a child constitutes the offense of child torture. Since the statute does not define "torture”, we construe the word "according to the common and approved usage of the language”.
Black’s Law Dictionary defines torture as "the infliction of violent bodily pain upon a person”. Torture also has been defined as "the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure”.
In view of the fact that the Legislature chose to use the word punishment in the child cruelty statute only, we hold that a punishment motive is not part of the child torture statute, but rather "torture”, in terms of the statute, refers to the infliction of violent bodily pain upon a child to satisfy sadistic motives. We conclude that the Legislature intended the child torture statute to apply to instances of sadism or vileness, where the "parent or guardian or person under whose protection or control any child may be” inflicts pain for purposes other than punishment.
The prosecutor based the child torture count on defendant’s administering of rubbing alcohol to the victim’s penis and defendant’s removal of the resulting scabs. The abuse of the victim by way of repeated beatings was charged to defendant under the child cruelty statute. The trial judge instructed the jury on the child torture count as follows:_
"I gave you members of the jury the three counts and I gave you the definition of cruelty, however, I don’t think I gave you the definition of torture. The third count is that the defendant then and there the person under whose protection of a certain child, to-wit: David Nelson, said child being David Nelson, age two, then and there unlawfully tortured the said David Nelson. Torture, members of the jury, as been defined, and you may accept the definition from the court, that it is the infliction of violent bodily harm or pain upon a person by another. The statute reads that any person so doing is guilty of violating the laws — the criminal laws of this state.”
In light of the foregoing analysis, we hold that convictions of both child cruelty and child torture do not violate the prohibition against multiple punishment for one offense, since each offense requires proof of a fact which the other does not require.
Defendant also claims that the statute which prohibits torture of a child is unconstitutionally vague. In People v Howell, the Supreme Court delineated three grounds upon which a statute may be challenged for vagueness:
"1. It does not provide fair notice of the conduct proscribed.
"2. It confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed.
"3. Its coverage is overbroad and impinges on First Amendment freedoms.” (Footnote omitted.)
Defendant claims the child torture statute is violative of the first two prongs of the Howell test because the statute does not define the word "torture”.
The standard employed for ascertaining whether a criminal statute is void for vagueness was enunciated in Lanzetta v New Jersey:
"[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”
In People v Goulding the Court discussed criminal statutes:
"Statutes defining crimes are to be strictly construed. They must prescribe with reasonable certainty the elements of the offense. 12 CJ, p 1203! They ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. United States v Brewer, 139 US 278; 11 S Ct 538; 35 L Ed 190 (1891); Commonwealth v Atlas, 244 Mass 78; 138 NE 243 (1923); United States v Sharp, 27 Fed Cas 1041 (1815). The legislature must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain rule of conduct. 8 RCL 58.
"Criminal statutes must so clearly define the acts upon which the penalty is denounced that no ordinary person can fail to understand his duty and the departure therefrom which the law attempts to make criminal. Brown v State, 137 Wis 543; 119 NW 338 (1909).”
Here, the trial judge determined the ordinary meaning of the word "torture” by consulting a dictionary. The word "torture” has a common, ordinary meaning to the extent that the child torture statute furnished adequate notice to defendant that the repeated application of rubbing alcohol to a two-year-old’s penis is proscribed conduct. We, therefore, conclude that the child torture statute is not unconstitutionally vague, as the reading of the statute would not cause people of common intelligence to speculate as to its meaning.
Defendant also argues that his conviction for child torture should be reversed because there was insufficient evidence presented at trial. We disagree. The evidence presented on this charge was sufficient to justify a trier of fact in reasonably concluding that defendant was guilty beyond a reasonable doubt.
Lastly, defendant claims that the trial court’s instructions on the child cruelty charge unconstitutionally shifted the burden of proof to defendant. Concerning this offense, the trial judge gave the following jury charge:
"As far as the cruelty to children, the statute provides that a parent, or guardian, or person under whose protection any child may be, who cruelly or unlawfully punishes, or wilfully, unlawfully, or negligently deprives of necessary food, clothing or shelter, et cetera, shall be guilty of a crime.
"In providing punishment for any person who cruelly or unlawfully punishes any child intended to include all cases of an unreasonable and unlawful punishment of any child.
"Members of the jury, courts do not and should not constitute themselves as the overseer of a household. The welfare of a child is the principle ground on which the parental right to chastise him is found and where the punishment inflicted is so excessive and cruel as to show beyond a reasonable doubt that the protector, or person, or the parent was not acting in good faith for the benefit of the child, but to satisfy his own ego passion, he is no longer to be considered as a judge administering the law of the household, but as a mal factor guilty of any or an unlawful assault on a helpless person who has been entrusted to his care or entrusted to his protection. Therefore, to maim a child, or to endanger his life or health, or to severely beat him in an improper fashion, or with a dangerous instrument, although no permanent injury be given, or to subject him to unusual forms of physical torture, or to whip him with such excessive severity as implies the absence of due appreciation of that protecting duty, or either that parental duty, they are acts which in themselves bespeak evil intent and a person guilty of excess will not be heard to say that he thought he was acting for the benefit of the child.”
Defendant failed to object to the allegedly improper instructions. As a general rule, this Court is reluctant to reverse a trial court as a result of an error in jury instructions where no objection was raised at trial. Failure to object at trial precludes immediate correction. Jury charges must be assessed in their entirety and, if there is error, it is not a ground for reversal absent an objection at trial, except upon a showing of manifest injustice, or if the charge omits an essential component of an oifense.
In reviewing the challenged instruction along with the other instructions, we find that even if error exists, it is not of such magnitude as to create manifest injustice. The trial court did not appear to be aware of the new proposed CJI 17:8:01. Furthermore, the child cruelty charge was taken in part from language approved of in People v Green.
However, the trial judge included "torture” within the elements of child cruelty when he stated:
"Therefore, to maim a child, or to endanger his life or health, or to severely beat him in an improper fashion, or with a dangerous instrument, although no permanent injury be given, or to subject him to unusual forms of physical torture, or to whip him with such excessive severity as implies the absence of due appreciation of that protecting duty, or either that parental duty, they are acts which [constitute the offense of child cruelty].” (Emphasis added.)
By including torture as an act which constitutes child cruelty, the trial court did not separate the offenses sufficiently for the jury to know that child torture and child cruelty each require proof of a fact that the other does not require. We cannot determine whether the jury returned a guilty verdict on the child cruelty charge on the basis of acts of torture or other acts.
Therefore, as a consequence of the act of torture being included in the trial court’s child cruelty instruction, we vacate defendant’s conviction and sentence on the child cruelty offense. The convictions and sentences on the first-degree criminal sexual conduct and child torture counts are affirmed.
Affirmed in part, reversed in part.
People v Cammarata, 257 Mich 60, 66; 240 NW 14 (1932); People v Cipriano, 238 Mich 332, 336; 213 NW 104 (1927); 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 420, pp 639-640.
US Const, Am V.
Const 1963, art 1, § 15.
North Carolina v Pearce, 395 US 711, 719; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
420 US 770, 785, fn 17; 95 S Ct 1284; 43 L Ed 2d 616 (1975).
MCL 8.3a; MSA 2.212(1).
Black’s Law Dictionary (4th ed), p 1661.
Webster’s Seventh New Collegiate Dictionary, p 934.
396 Mich 16, 20; 238 NW2d 148 (1976).
306 US 451, 453; 59 S Ct 618; 83 L Ed 888 (1939).
275 Mich 353, 358-359; 266 NW 378 (1936).
People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980).
GCR 1963, 516.2; MCL 769.26; MSA 28.1096; People v Anglin, 111 Mich App 268, 285; 314 NW2d 581 (1981).
See People v Elmore, 94 Mich App 304, 307; 288 NW2d 416 (1979); 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 564-567.
We note that proposed CJI 17:8:01 was approved by the Michigan State Bar Special Committee on Standard Criminal Jury Instructions on November 16, 1979, but never adopted as such by the Supreme Court. Since this case was tried in April, 1980, and since the supplement for filing was dated "6/80”, it would not seem the trial judge had received his copy at the time of trial.
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M. F. Cavanagh, P.J.
Plaintiff was employed as a waitress by defendant Michigan Host, Inc.; defendants Vogel and Twill were her supervisors. Prior to this action, the plaintiff and other female employees sued defendant Michigan Host in federal court, alleging that the work uniform requirement of high-heeled shoes and a short skirt was discriminatory and subjected them to sexual harassment. The action was dismissed without prejudice. Plaintiff then brought this present suit in circuit court, alleging gender discrimination and harassment and alleging that defendant Michigan Host forced her to quit her job in retaliation for her suit in federal court. She also alleged that defendants Vogel and Twill, through the uniform policy of defendant Michigan Host, intentionally inflicted emotional distress upon her and that they intentionally interfered with her contract of employment by forcing her to resign. Defendants moved for accelerated judgment pursuant to GCR 1963, 116.1(2), claiming that the circuit court lacked subject matter jurisdiction over the controversy because the plaintiff’s exclusive remedy was to seek compensation under the Worker’s Disability Compensation Act. Defendant’s motion for accelerated judgment was granted, and the plaintiff now appeals by right.
Plaintiff argues that the Legislature did not intend discrimination claims brought under the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., to be heard by the Bureau of Workers’ Disability Compensation but rather intended such claims to be brought in circuit court. Defendant counters that the exclusive-remedy provision of the Worker’s Disability Compensation Act bars the plaintiffs suit in circuit court because the plaintiffs alleged injuries are covered by the act.
The Worker’s Disability Compensation Act provides that: "The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer.” MCL 418.131; MSA 17.237(131). When an employee suffers "a personal injury arising out of and in the course of [the injured party’s] employment”, physical and mental disabilities are compensable under the act. MCL 418.301; MSA 17.237(301); Cole v Dow Chemical Co, 112 Mich App 198, 204; 315 NW2d 565 (1982). Furthermore, if a plaintiff alleges both injuries covered by the act and injuries not covered by the act, he or she must pursue the workers’ compensation remedy for those injuries covered by the act. Cole, supra, p 206; Stimson v Michigan Bell Telephone Co, 77 Mich App 361, 369; 258 NW2d 227 (1977).
To begin with, we agree with the defendants that the applicability of the exclusive-remedy provision of the act turns not upon the characterization of the asserted cause of action but upon whether the employee has a right to recover benefits under the act. Stimson, supra, p 367. Therefore, the fact that the plaintiffs suit is based on a discrimination claim is not dispositive of which forum should hear the case. A civil suit for damages based upon an alleged violation of the plain tiffs right to employment without sex discrimination is in the nature of a tort action and, as such, concerns a personal injury to the plaintiff. Stimson, supra, fn 3, p 366. The act provides compensation for disabilities resulting from a personal injury suffered by an employee during the course of his or her employment. Thus, certain elements of damages in a sex discrimination suit may be barred by the act’s exclusive-remedy provision, although generally a nonphysical tort such as sex discrimination falls outside the scope of the act. Stimson, supra, p 366.
For example, if as a result of sex discrimination in employment a plaintiff suffers disabling mental and nervous injuries resulting in some psychoneurotic or psychotic condition, the plaintiffs mental injuries would result in a compensable injury under the act. See Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978). The compensable injury would be the resulting disability; however, we agree with this Court’s holding in Pacheco v Clifton, 109 Mich App 563, 575; 311 NW2d 801 (1981), that any prior claims for mental suffering arising from the discrimination do not merge with the resulting disability claim. As the Court stated in Freeman v Kelvinator, Inc, 469 F Supp 999, 1000 (ED Mich, 1979):
"The source of defendant’s misconception is perhaps its belief that the injury which flows from discrimination is akin to mental injuries sustained by workers from compensable sources. It is not. The discrimination injury is unique. Its source is deliberate or inadvertent disregard by the employer of the fundamental rights of his employees.” (Emphasis added.)
We hold that a victim of discrimination may bring a civil suit to recover for damages for any humiliation, embarrassment, outrage, disappointment, and other forms of mental anguish which flow from the discrimination injury. Such claims are not barred by the exclusive-remedy clause of the Worker’s Disability Compensation Act because they are independent of any disability which might be compensable under the act. These types of injuries are the kind that the Elliott-Larsen Civil Rights Act was designed to protect against and to hold otherwise would undercut the legislative scheme to remedy discriminatory wrongs. Pacheco, supra, p 575; Freeman, supra, p 1003.
Turning back to the case at bar, we note that the plaintiff has alleged not only several forms of mental anguish but also loss of wages, loss of professional esteem, damage to the plaintiff’s career, loss of pension rights and employee benefits, loss of seniority, and loss of employment. We find that these injuries, if proven to have resulted from sexual discrimination rather than from a disability, are not barred as a matter of law by the Worker’s Disability Compensation Act because they are not compensable under the act. Pacheco, supra, p 574; Stimson, supra, p 369. This holds true also for the plaintiff’s claims against defendants Vogel and Twill for intentional infliction of emotional distress, interference with the plaintiff’s contract of employment, and interference with the plaintiff’s advantageous business relationships. Plaintiff should have an opportunity to adjudicate these claims at trial. We direct the court’s attention to the agreement to redeem liability made between the plaintiff and defendant Michigan Host as under the agreement the plaintiff may have waived some of her claims with respect to defendant Michigan Host.
Reversed and remanded.
The parties do not appear to dispute the question of whether the plaintiff’s injuries arose out of and in the course of her employment, thus we need not address this issue. | [
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Per Curiam.
September 8, 1981, in file no. 81-06114 in the Recorder’s Court for the City of Detroit, defendant and a codefendant, Melvin Brown, pled guilty to one count of armed robbery and one count of felony-firearm. At the same proceeding, defendant also pled guilty to one count of armed robbery in file no. 81-06000. Both pleas were entered pursuant to a sentence bargain that defendant would be sentenced to not less than five years nor more than ten years. Following the plea taking, defendant was sentenced to the mandatory two years for felony-firearm, three to five years on one of the armed robbery counts, and five to ten years on the second armed robbery count, the latter armed robbery sentence to run concurrently with the former.
On appeal, defendant does not claim the plea bargain agreement was violated. Instead, defendant argues that the plea proceedings were invalid in two respects: (1) he was not advised of the mandatory minimum sentence for armed robbery; and (2) he was not informed that he could not be placed on probation. Because we find error on the second issue, we need not consider the first issue.
Relying on the following exchange, the prosecution first claims defendant was informed that armed robbery is a nonprobationable offense, the trial court’s use of the word "paroleable” being inadvertent:
"The Court: Mr. Coleman, on 81-06000, your charge was armed robbery, which is, as I stated, a felony punishable by life imprisonment. Any number of years the court sees fit to impose upon.
"You understand in the firearm, however, that is say that either one of these cases you cannot be paroled. Strike that.
"You cannot get credit for good-time on armed robbery and possession of firearm in the commission or attempt to commit a felony is not paroleable. You must do two years the court impose upon you; do you understand that?
"Defendant Coleman: Yes.”
However, we believe the trial court’s use of the word paroleable rather than probationable was intentional and was done to inform defendant of the consequences of Proposal B.
In People v Rogers, 412 Mich 669; 316 NW2d 701 (1982), the Supreme Court insisted on strict compliance with subsection (f) of GCR 1963, 785.7(1). Subsection (f) requires the court to inform a defendant that armed robbery is a nonprobationable offense. However, the Supreme Court’s opinion in Rogers did not indicate whether a sentence agreement was involved. In People v Greene, 116 Mich App 205; 323 NW2d 337 (1982), one panel of this Court, after noting the absence of a sentence agreement in Rogers, held that Rogers applied only where there was no sentence bargain and did not apply where, as in the instant case, defendant knew that he was going to prison. However, most panels of this Court have not followed this restrictive reading of Rogers and have reversed, albeit reluctantly, whenever the defendant is not informed the offense is nonprobationable, even where, as in the present case, the defendant clearly knows he is going to prison. People v Shively, 116 Mich App 323; 323 NW2d 383 (1982); People v Harrison, 117 Mich App 472; 324 NW2d 57 (1982). However, any doubt that strict compliance with Rogers is not required where a plea bargain is involved was erased on August 24, 1982, when the Supreme Court, by order no. 69626, reversed People v Greene:
"[I]n lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals, vacate the defendant’s conviction of second-degree murder and remand the matter to the Detroit Recorder’s Court for further proceedings. The trial court did not advise the defendant that he could not be placed on probation if he pled guilty to this charge. GCR 1963, 785.7(l)(f); People v Rogers, 412 Mich 669 (1982). The existence of a sentence bargain does not negate the requirement that this advice be given.” 414 Mich 896 (1982).
The prosecution argues that if this Court is of the opinion that the Supreme Court’s order in Greene mandates strict, literal and rote compliance with GCR 1963, 785.7(l)(f) — and we are of that opinion — then at least the Supreme Court’s order in Greene should be given prospective effect only. Pointing to the division among various panels of this Court on the degree of compliance required by subsection (f), to the onerous burden which the prosecution believes will be placed on the criminal justice system if the Supreme Court’s order in Greene is retroactively enforced, and to the fact that defendants who plead guilty under a sentence bargain involving a term of years are not prejudiced by a trial court’s failure to state that the offense charged is a nonprobationable offense, the prosecution concludes that under the three-factor test set forth in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971), prospective application is mandated.
We are not unsympathetic to the prosecution’s argument. In the seven years transpiring since the adoption of GCR 1963, 785.7(l)(f), a substantial number of charges involving nonprobationable offenses have been disposed of by guilty pleas without strict and literal compliance with the rule as mandated by Rogers. Many involved sentence bargains where the defendant knew he would go to prison rather than be placed on probation. If all of these cases are to be reversed, the burden imposed on the state’s already overburdened criminal justice system would be staggering.
Nevertheless, this Court must follow the dictates of the Supreme Court. The Supreme Court’s order in Greene, quoted above, relies on Rogers, supra. The language and rationale of Rogers clearly appears to preclude limiting the rule announced in Rogers to prospective application.
"Since then [Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975)], the Court of Appeals has reached conflicting positions on whether noncompliance with Rule 785.7(l)(f) requires reversal. We have insisted on strict compliance with two other subsections on sentence consequences, Rule 785.7(1), subds (b) and (d). People v Jones, 410 Mich 407; 301 NW2d 822 (1981). The requirements of Rule 785.7 as to advice on sentence consequences represents our judgment that it is important that the defendant be advised of these sentence consequences before pleading guilty to an offense. We underscored this importance in Jones by imposing the sanction of reversal for noqqncompliance with (l)(b) and (l)q(d); we believe (l)(f) is of the same stature and adopt the same sanction for noncompliance.” Rogers, pp 671-672. (Footnote omitted.)
Furthermore, while the defendant in the instant case pled guilty prior to Rogers, he pled guilty after Jones. The language of Rogers reaffirms the rule of strict compliance earlier mandated in Jones. Thus, it can be reasonably argued that, if only prospective effect is to be given to the Supreme Court’s order in Greene, it should date back to February 23, 1981, the date of the decision in Jones. For the foregoing reasons, we decline to give the Supreme Court’s order in Greene prospective effect only. Because the trial court failed to inform defendant that armed robbery was a nonprobationable offense and because this was a violation of GCR 1963, 785.7(l)(f), defendant’s conviction is reversed and remanded to the Recorder’s Court of Detroit for further proceedings.
Reversed and remanded.
While the Supreme Court did not mention whether a sentence bargain had been entered, our review of the Court of Appeals file in the Rogers case reveals that a sentence bargain did exist. According to the prosecution’s application for leave to the Supreme Court, and the prosecution’s appellate brief in the Court of Appeals, Rogers pled guilty to second-degree murder and felony-firearm pursuant to an agreement that defendant would be sentenced to five years for a second conviction under the felony-firearm statute and to a term of from 2 to 15 years for the second-degree murder conviction. The trial court sentenced Rogers in accordance with the agreement.
Contra: People v Freeman, 73 Mich App 568; 252 NW2d 518 (1979). Likewise, where no sentence bargain was involved, this Court has split on the question of whether failure to inform defendant that the offense is nonprobationqble is reversible error. Holding the error harmless is People v Lendzien, 80 Mich App 323; 263 NW2d 360 (1977), and People v Earl Jones, 94 Mich App 232; 288 NW2d 385 (1979). Holding to the contrary is People v Thalacker, 99 Mich App 372; 297 NW2d 679 (1980).
"The United States Supreme Court has discussed various factors to be used in determining whether a law should be applied retroactively or prospectively. There are three key factors which the court has taken into account: (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice.” Hampton, p 674.
In Jones the trial court informed that defendant that if he accepted the guilty plea, he would impose a sentence of no more than 10 to 15 years. Thus, that defendant knew he was not to be given probation. However, the court did not tell the defendant he could not be put on probation nor did he tell the defendant the maximum possible sentence was life imprisonment. | [
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] |
V. J. Brennan, J.
Plaintiff appeals as of right from an order of the trial court granting defendants’ motion for accelerated judgment pursuant to GCR 1963, 116.1(5). A detailed statement of facts appears in the related case of Estate of George T Rinaldi, Sr v Rinaldi, 112 Mich App 25; 314 NW2d 788 (1981).
Briefly, plaintiff and defendant George D. Rinaldi (hereinafter George, Jr.), were divorced in 1978, and plaintiff was awarded their 43-foot yacht. George, Jr., was ordered to continue paying the monthly payments and to maintain the yacht until it could be sold, but he did not do so. When the second priority lien holder instituted a claim and delivery action for immediate possession in March, 1978, Estate of Rinaldi, supra, defendant George T. Rinaldi (hereinafter George, Sr.), obtained an assignment of the lien. He also assumed the underlying indebtedness to City National Bank which held the purchase money security interest.
At a hearing on the claim and delivery suit held in February, 1979, plaintiff attempted to demon strate that the lien of George, Sr., should not be enforced because George, Sr., and George, Jr., had colluded to reduce or eliminate her equity interest in the yacht. Plaintiff’s testimony was confined to both defendants’ conduct during the divorce proceedings. George, Sr., died shortly thereafter, and his estate became a party in interest. City National Bank then foreclosed on its lien and the boat was sold for substantially less than its original value.
In January, 1980, the trial court in the claim and delivery action found that the lien of George, Sr., was valid but unenforceable because of the collusive and improper actions of George, Sr., and George, Jr. Plaintiff was awarded the proceeds of the sale over and above the amount paid to the bank. This Court reversed that decision in Estate of Rinaldi supra, because there was no testimony demonstrating that George, Sr., had failed to pay valid consideration for the lien. It was noted that, although defendants may have conspired to deprive plaintiff of her marital property by failing to make the payments on the boat and by failing to maintain it in a marketable condition, their actions did not render the assignment fraudulent or the lien unenforceable. Estate of Rinaldi, supra, pp 32-33. Thus, plaintiff received nothing from the sale since the proceeds were not sufficient to satisfy the lien of George, Sr.
Plaintiff then filed the present action in January, 1981, for exemplary damages for the loss of the yacht’s value and attorney fees incurred in both the divorce suit and the claim and delivery suit. Plaintiff’s allegations of wilful, malicious and wrongful conduct by defendants are the same as those made by her in the claim and delivery action. Defendants moved for both summary and accelerated judgment, claiming that plaintiff was barred from asserting a slightly different theory of recovery based on the same set of facts. In granting defendants’ motion for accelerated judgment, the court found that plaintiff’s claims should have been filed and decided in the prior two actions and that the suit was barred because of the rule against splitting causes of action and collateral estoppel. Plaintiff claims that the trial court’s findings were erroneous.
In deciding a motion for accelerated judgment, a court must accept as true all well-pleaded facts of the nonmoving party. Black v Rasile, 113 Mich App 601, 603; 318 NW2d 475 (1980), lv den 411 Mich 987 (1981); Kircos v Goodyear Tire & Rubber Co, 108 Mich App 781, 783; 311 NW2d 139 (1981). Generally, exemplary damages are recoverable in all damage actions which are based upon tortious acts involving malice, fraud, insult, or wanton and reckless disregard of plaintiff’s rights. Oppenhuizen v Wennersten, 2 Mich App 288, 296; 139 NW2d 765 (1966). Exemplary damages are compensatory in nature, not punitive, since they are actually an element of actual damages. McLaren v Zeilinger, 103 Mich App 22, 25; 302 NW2d 583 (1981). Since plaintiff alleges malicious conduct on the part of defendants which directly caused a decrease in the yacht’s value, she should be entitled to compensation for those losses if her claim is not barred.
By arguing that plaintiff is prevented from asserting the present cause of action, defendants have blurred the concepts of splitting causes of action, res judicata and collateral estoppel. We will discuss each and its effect on the present case. Splitting a cause of action involves dividing a single or indivisible cause of action into several claims and bringing several actions thereon. Tuttle v Everhot Heater Co, 264 Mich 60, 64; 249 NW 467 (1933). The rule is designed to prohibit vexatious litigation and does not apply to an involuntary party to a prior suit. LaBour v Michigan National Bank, 335 Mich 298, 302; 55 NW2d 838 (1952). This common-law rule is incorporated into GCR 1963, 203.1 but is expressed as compulsory joinder of claims. Michigan National Bank v Martin, 19 Mich App 458, 461; 172 NW2d 920 (1969). Since plaintiff, here, was a defendant in both the divorce action and the claim and delivery action, the rule is not applicable. Even if it were applicable, defendants’ failure to object waives the defense in this suit. Rogers v Colonial Federal Savings & Loan Ass’n of Grosse Pointe Woods, 405 Mich 607, 620; 275 NW2d 499 (1979).
The court rules which are applicable here are GCR 1963, 203.2, permissive claims and counterclaims, and GCR 1963, 203.3, permissive cross-claim against co-party. Thus, plaintiff was not required under the rules to file a counterclaim against George, Sr., or cross-claim against George, Jr., for exemplary damages in the claim and delivery action. See Bank of the Commonwealth v Hulette, 82 Mich App 442, 444; 266 NW2d 841 (1978); Karakas v Dost, 67 Mich App 161, 172-173; 240 NW2d 743 (1976), lv den 396 Mich 869 (1976); Cf. Sahn v Brisson, 43 Mich App 666, 671; 204 NW2d 692 (1972). However, the principles of res judicata and collateral estoppel may, nonetheless, be applied if the present cause of action and claims are not sufficiently dissimilar from those involved in the prior actions.
The distinction between res judicata and collateral estoppel was aptly described in Braxton v Litchalk, 55 Mich App 708, 717-718; 223 NW2d 316 (1974):
"According to the general rules discussed in Howell v Vito’s Trucking & Excavating Co, 386 Mich 37, 41-42; 191 NW2d 313 (1971), and Jones v Chambers, 353 Mich 674, 680-681; 91 NW2d 889 (1958), the doctrine of res judicata is applicable to a second suit involving the same cause of action as that raised in the first suit, and will bar the relitigation of issues which actually were or might have been presented before the court in the first action. As noted in Topps-Toeller, Inc v Lansing, 47 Mich App 720, 726-727; 209 NW2d 843 (1973), lv den 390 Mich 788 (1973), res judicata bars a subsequent suit between the same parties or their privies when the same cause of action is raised in a subsequent suit, and when the facts or evidence essential to the maintenance of both actions are identical. On the other hand, collateral estoppel will bar the relitigation of issues previously decided in the first action when the parties to the second action are the same; where the second suit is a different cause of action, the bar is conclusive only as to issues actually litigated in the first suit.”
See also Sahn, supra, p 669.
The present cause of action is to recover the value of the yacht awarded to plaintiff which was allegedly diminished by defendants’ refusal to make the monthly payments and maintain the yacht in a marketable condition. The claim and delivery action involved the enforcement of the liens on the yacht. The divorce suit decided the ownership and division of the property of plaintiff and George, Jr. Since all of the suits involved different causes of actions and required different elements of proof, the doctrine of res judicata does not apply.
We next examine the doctrine of collateral estoppel which was discussed by the Court in Stolaruk Corp v Dep’t of Transportation, 114 Mich App 357, 362; 319 NW2d 581 (1982):
"In order for collateral estoppel to apply, the same ultimate issues underlying the first action must be involved in the second action. The parties must also have had a full opportunity to litigate the ultimate issues in the former action. Fifield v Edwards, 39 Mich 264 (1878). Finally, collateral estoppel only applies where there is mutuality of estoppel. Mutuality of estoppel is present if both litigants in the second suit are bound by the judgment rendered in the first suit. Braxton v Litchalk, supra, 720; Howell v Vito’s Trucking & Excavating Co, 386 Mich 37, 42-43; 191 NW2d 313 (1971).”
Defendants contend that since plaintiff’s present claim involves the same issues and subject matter raised in plaintiff’s defense to the enforceability of the lien of George, Sr., she is collaterally estopped from maintaining the counterclaim. Defendants and the trial court cite as their primary authority the case of Sahn v Brisson, supra, pp 670-672. Plaintiff maintains that Karakas v Dost, supra, pp 171-173, is the controlling precedent. However, we find that neither case is directly applicable since the plaintiffs in those cases did not assert a defense in their prior suits.
The general rule is stated in Ternes Steel Co v Ladney, 364 Mich 614, 619; 111 NW2d 859 (1961):
"We conclude that when a litigant’s right to affirmative relief is independent of a cause of action asserted against him and it is relied upon only as a defense to that action, he is barred from seeking affirmative relief thereon in a subsequent proceeding. But if he does not rely upon his claim as a defense to the first action, or as a counterclaim thereto, he is not barred from subsequently maintaining his action for affirmative relief in an independent suit.
"In other words, plaintiff can plead defendant’s breach of warranty as a defense in the first suit, he can plead it as a defense and as a counterclaim in the first suit, or he can sue thereon subsequently for affirmative relief, but he cannot combine the alternatives. Once he raises the issue, it must be fully and finally determined.” (Citations omitted.)
See also Corkins v Ritter, 326 Mich 563, 568-569; 40 NW2d 726 (1950); Leslie v Mollica, 236 Mich 610, 615-617; 211 NW 267 (1926); Schuhardt v Jensen, 11 Mich App 19, 21; 160 NW2d 590 (1968).
Restatement Judgments, § 58, comment c, pp 232-233, explains further:
"c. Defense and counterclaim — Judgment for plaintiff —Collateral estoppel. Where the same facts constitute a ground of defense to the plaintiffs claim and also a ground for a counterclaim, and the defendant alleges these facts as a defense but not as a counterclaim, and after litigation of the defense judgment is given for the plaintiff, the defendant is precluded from maintaining an action against the plaintiff based on these facts. This is in accordance with the rule as to collateral estoppel stated in § 68, that where a question of fact essential to a judgment is actually litigated and determined by the judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action.” (Emphasis added.)
See also 83 ALR 642, 648.
Restatement Judgments, comment o to § 68, p 309, provides:
"o. Facts not essential to the judgment. The rules stated in this Section are applicable only where the facts determined are essential to the judgment. Where the jury or the court makes findings of fact but the judgment is not dependent upon these ñndings, they are not conclusive between the parties in a subsequent action based upon a different cause of action.” (Emphasis added.)
See also Senior Accountants, Analysts & Apprais ers Ass’n v Detroit, 399 Mich 449, 458; 249 NW2d 121 (1976); Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich App 213, 219; 290 NW2d 414 (1980), lv den 409 Mich 919; 133 ALR 840 (1980).
It is clear that the question of defendants’ misconduct was actually litigated as an affirmative defense in the claim and delivery action but only as it related to the enforceability of the lien of George, Sr. The court found that defendants did collude to deprive plaintiff of her property and ruled that this was sufficient to render the lien unenforceable. This Court, however, reversed that decision because there was no evidence of collusion with respect to the assignment of the security interest and, therefore, the lien was enforceable. However, it was noted that defendants may have conspired against plaintiff by failing to pay for or maintain the boat, thereby depriving plaintiff of her marital property.
Thus, the only issue of fact that was essential to the prior suits that could be related to the present case was the lack of collusion between defendants in obtaining the lien. The trial court’s finding of general wrongdoing was not relevant to the enforceability of the lien. Because the ultimate issue in the present case is whether defendants did, in fact, conspire to deprive plaintiff of her marital property and thereby diminished plaintiffs interest in the yacht, we find that this issue is not the same as the ultimate issues in either of the prior actions and that the present action is not barred by collateral estoppel. We reverse the trial court’s order granting accelerated judgment and remand for a trial.
Plaintiffs second claim is that the trial court erred in dismissing her claim against defendants for all expenses including attorney fees reasonably incurred in defending the two prior actions.
We first find that plaintiff is not entitled to costs and attorney fees incurred in the divorce action since she was already awarded approximately $3,-250 for those expenses in the divorce judgment. However, we further find that plaintiff may be able to recover all of her reasonable costs and attorney fees incurred in the claim and delivery action from George, Jr.
Generally, awards of costs or attorney fees are not allowed unless expressly authorized by statute, court rule, or a recognized exception. Exceptions must be narrowly construed. Normally, expenses incurred in the present litigation are not recompensable no matter how wrongful the suit or groundless the defense. However, where the present defendant has by his wrongful conduct proximately caused the present plaintiff to defend a prior legal proceeding against a third party, plaintiff may recover all expenses, including attorney fees, reasonably incurred in the previous litigation. Warren v McLouth Steel Corp, 111 Mich App 496, 507-508; 314 NW2d 666 (1981); Scott v Hurd-Corrigan Moving & Storage Co, Inc, 103 Mich App 322, 347; 302 NW2d 867 (1981), lv den 412 Mich 881 (1981); State Farm Mutual Automobile Ins Co v Allen, 50 Mich App 71, 78-79; 212 NW2d 821 (1973).
The exception appears to be applicable to the present case because George, Jr., failed to make payments on the yacht which precipitated the prior claim and delivery action. On the other hand, George, Sr., would not be liable for any of plaintiff’s expenses incurred in defending her interest against his valid security interest. However, he may be liable for any expenses arising out of his failure to pay City National Bank, i.e., any separate expenses which plaintiff incurred in defending against the bank’s purchase money security interest. Those matters are to be determined in the trial court.
Reversed and remanded. | [
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Per Curiam.
Plaintiffs brought this malpractice action based on a fracture which plaintiff Jacob Waatti suffered while being treated in the emergency room of Marquette General Hospital. The trial court directed a verdict in favor of all the defendants at the close of the plaintiffs’ proofs on the ground that the plaintiffs had failed to present evidence of the applicable standard of care and thus had failed to present a question for the jury. Plaintiffs appeal by right, and we affirm.
Plaintiff Jacob Waatti suffered an epileptic-type seizure in his home and was taken by ambulance to Marquette General Hospital where defendant Dr. Robert Simon, an employee of the U. P. Emergency Physicians, was in charge of the emergency room. When plaintiff arrived at the hospital, he was given anti-convulsive medication and underwent X-rays. At that time, he had no fractures. After the plaintiff regained consciousness, defendant Simon called a neurologist on the regular hospital staff to examine him. During this consul tation, plaintiff sat on the edge of the bed with the side rails down. Plaintiff was then informed that he could return home with medication or be admitted to the hospital; plaintiff chose to remain where he was. Approximately two hours later he suffered a second seizure and was taken to the intensive care room where X-rays showed a fracture of the left shoulder.
Dr. Donald Elzinga testified that he subsequently treated the plaintiff for his fracture. Dr. Elzinga is an orthopedic surgeon, and he opined that the fracture occurred when the plaintiff’s second seizure caused his muscles to forcefully contract, ramming him against the side rails of the bed. Dr. Elzinga was not qualified by the trial court as an expert in emergency medicine and indicated that his experience with treatment of seizure-type patients was limited to the orthopedic floor.
Plaintiff’s fractured shoulder was also treated by Dr. M. Y. Kiani, an orthopedic surgeon, who testified that breaks of the type suffered by the plaintiff usually occurred in falls, but they could be caused by the sheer force of the muscle contractions occurring in the seizures. Dr. Kiani was never qualified as an expert witness by the lower court and was never asked about the standard of care applicable to emergency room treatment of seizure patients.
At the close of the plaintiffs’ case, the defendants moved for a directed verdict because the plaintiffs had not presented any evidence regarding the applicable standard of care. Plaintiffs’ motion to reopen the proofs was granted, and plaintiffs introduced the deposition testimony of the head nurse in charge of the emergency room on the date of the injury. This testimony indicated that seizure patients must be constantly attended and the side rails to their beds left raised.
We find a directed verdict in favor of the defendants was proper. In a malpractice case expert testimony is required to establish professional negligence by showing both the appropriate standard of care and breach of that standard. Absent expert testimony, there is no prima facie showing of liability, and a directed verdict against the plaintiff is proper. Wallace v Garden City Osteopathic Hospital, 111 Mich App 212, 216; 314 NW2d 557 (1981). Although a witness may qualify as an expert by virtue of experience, knowledge, skill, training, or education, he must in all cases explicitly state his familiarity with the appropriate standard of care applicable in a given situation. Haisenleder v Reeder, 114 Mich App 258; 318 NW2d 634 (1982).
In this case neither physician who testified was ever asked whether he was familiar with the standard of care applicable to the emergency room treatment of a seizure patient who has been given the option of returning home by his or her physician. The record does not show that either of the physicians had any experience in emergency medicine. Absent evidence as to the standard of care for emergency room treatment, the plaintiffs’ evidence was insufficient to create an issue of fact. Haisenleder v Reeder, supra.
We reject the plaintiffs’ claim that the head nurse’s deposition testimony established the requisite standard of care. Not only was the nurse not questioned as to what standard was required in the particular facts of this case, but he was also not qualified to give expert testimony as to the standard required of a licensed physician specializing in the practice of emergency medicine. See, e.g., Stanek v Bergeon, 89 Mich App 283; 279 NW2d 296 (1979) (testimony of an X-ray technician held not admissible to establish the standard of care appropriate to a physician).
Plaintiffs next assert that expert testimony was not required because only issues of ordinary negligence were presented. They claim that to leave a seizure patient unattended with the hospital bed’s side rails down is so obviously negligent as to present issues cognizable by an ordinary layman. Wilson v Stilwill, 411 Mich 587; 309 NW2d 898 (1981) . We disagree. Whether a seizure patient requires constant medical attendance or restraints is an issue of medical management to be established by expert testimony. Wilson v Stilwill, supra; Starr v Providence Hospital, 109 Mich App 762; 312 NW2d 152 (1981).
Finally, the plaintiffs were not entitled to an inference of negligence, Neal v Friendship Manor Nursing Home, 113 Mich App 759; 318 NW2d 594 (1982) , merely by proving an injury. Although Michigan has not formally adopted the doctrine of res ipsa loquitur, a plaintiff in a malpractice action is entitled to an inference of negligence if he can show the following four elements:
1. The event is of a kind which does not normally occur absent negligence;
2. The event is caused by an instrumentality within the exclusive control of the defendant;
3. The event is not due to any voluntary action by the plaintiff;
4. The explanation is more accessible to the defendant than to the plaintiff.
Neal v Friendship Manor Nursing Home, supra, pp 764-765.
Here, however, both doctors testified that the plaintiffs fracture could have been caused by the sheer force of his seizure. Clearly, this occurrence could naturally have occurred absent anyone’s negligence. The mere occurrence of an injury does not permit the inference of negligence. Wilson v Stilwill, supra, p 608.
The last issue, raised by the defendants, is not properly before us since the defendants failed to file a cross-appeal.
Affirmed. Defendants may tax costs. | [
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] |
Mackenzie, P.J.
Plaintiff, a prison inmate in the custody of defendant Department of Corrections, brought this action under the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., to compel disclosure of a public record. The record in question was a film made by defendant department of plaintiff being forcibly removed from a cell at the Ionia reformatory. Defendant department contended that the film was exempt from disclosure pursuant to MCL 15.243(1); MSA 4.1801(13)(1), which provides in part:
"A public body may exempt from disclosure as a public record under this act:
"(c) A public record which if disclosed would prejudice a public body’s ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.”_
Defendant department argued that disclosure of films of this type would prejudice its ability to maintain the physical security of its institutions because such films may reveal the methods, tactics, and equipment used to restrain and subdue prisoners and because, by studying such films, prisoners might learn to circumvent such methods, tactics, and equipment. Defendant Gregorich testified that the particular film at issue showed only the use of a mattress and overwhelming manpower to subdue plaintiff, and the circuit judge held, after viewing the film in private pursuant to MCL 15.240(1); MSA 4.1801(10)(1), that disclosure of this particular film posed no danger to prison security. The circuit judge ordered disclosure and defendants appeal by right.
Defendants’ argument on appeal is that, regardless of the contents of the particular film at issue here, the film should be exempt from disclosure if they can show that such films as a class fall within the exemption. As authority for this generic approach to exemption, defendants rely on Evening News Ass’n v City of Troy, 101 Mich App 650; 300 NW2d 667 (1980), lv gtd 412 Mich 884 (1981). That case involved MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i), which permits exemption from disclosure of investigating records compiled for law enforcement purposes to the extent that disclosure would interfere with law enforcement proceedings. The decision in that case was based on National Labor Relations Board v Robbins Tire & Rubber Co, 437 US 214; 98 S Ct 2311; 57 L Ed 2d 159 (1978), a case construing the analogous exemption contained in 5 USC 552(b)(7)(A).
The Evening News and Robbins decisions were based on three considerations. First, the state and federal exemptions at issue in those cases referred to "enforcement proceedings” in general, in contrast to the language employed in related exemptions such as 5 USC 552(b)(7), subds (B), (C), and (D) or MCL 15.243(l)(b), subds (ii), (iii), and (iv); MSA 4.1801(13)(l)(b), subds (ii), (iii), and (iv), which clearly require a particularized showing of risk in each individual case. Second, the state and federal exemptions are temporary; they last only so long as the law enforcement proceedings are pending. Finally, the legislative history of the federal statute shows no congressional intent to require a particularized showing of risk in each individual case for the exemption contained in 5 USC 552(b)(7)(A) to apply. Originally, all an agency needed to show to withhold records under 5 USC 552(b)(7) was that the records were investigatory in nature and had been compiled for law enforcement purposes. Courts had construed the exemption to allow records to be withheld even after the termination of investigation and enforcement proceedings. Congress amended the statute in 1974 to add the language at issue in Robbins. Examination of the congressional debates on the amendment shows that Congress intended to make it clear that records were not permanently exempt merely because they were contained in investigatory files, but that Congress did not intend to alter general rules such as that at issue in Robbins, by which the National Labor Relations Board refused to disclose statements of potential witnesses in unfair labor practice proceedings, to prevent such witnesses from being coerced or intimidated. Robbins, pp 228-236, 239.
None of the considerations on which the Evening News and Robbins decisions were based have any relevance to the exemption at issue here. The exemption contains no generalized language analo gous to that contained in 5 USC 552(b)(7)(A) or MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i). Rather, the balancing test contained in the exemption at issue here suggests that a case-by-case approach is required because it reveals a legislative intent to accommodate, insofar as it is possible, the respective public interests in institutional security and freedom of information. If the balancing test must be performed with generalizations rather than specifics, there will be cases in which one of these public interests must be sacrificed without any countervailing advancement of the other public interest.
The exemptions contained in 5 USC 552(b)(7)(A) and MCL 15.243(l)(b)(i); MSA 4.1801(13)(l)(b)(i) expire at the end of the law enforcement proceedings. In contrast, the exemption at issue here is, in most applications, permanent, although conceivably in some instances changing needs of institutional security could lead to the release of materials previously withheld. The Legislature has declared that the public policy of this state requires disclosure of full and complete information concerning the affairs of government. MCL 15.231(2); MSA 4.1801(1)(2). Because our construction of the act must be consistent with that policy, we are more reluctant to give a broad construction to a permanent exemption than to a temporary exemption.
Finally, in contrast to the exemptions at issue in Evening News and Robbins, nothing in the legislative history of this exemption suggests that the generic approach advocated by defendants was intended. The circuit judge did not err by ordering disclosure on the facts presented here.
Affirmed. | [
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D. S. DeWitt, J.
On December 10, 1975, plaintiff suffered traumatic amputation of a portion of her right hand when it was crushed in a press which she was operating. The press had been manufactured by defendant E. W. Bliss Company. Defendant Bliss sold the press to plaintiffs employer, Kent Products, on June 16, 1961. At the time of her injury, plaintiff was using the press in conjunction with a die supplied by defendant General Motors Corporation. Plaintiff’s employment required her to hand-load and hand-remove items which the press formed by a single stroke operating cycle activated by dual palm switches. Plaintiff was in the act of removing a finished piece from the press when it inexplicably restruck and crushed her hand.
Defendants Kent Products and The Home Indemnity Company paid workers’ compensation benefits to the plaintiff. The instant action was filed against defendants Bliss and General Motors. Plaintiff’s Complaint alleges separate counts of negligence, breach of warranty, strict liability, and fraud. Following a three-year discovery period, General Motors moved for and was granted summary judgment dismissing it from the suit.
At trial, upon the close of plaintiff’s proofs, defendant Bliss moved for a directed verdict on all plaintiff’s theories of recovery. The judge granted the motion in part, dismissing the strict liability and fraud counts, as well as part of plaintiff’s cause of action for breach of warranty. The trial judge denied Bliss’s motion for a directed verdict on plaintiff’s theory of negligence arising from a failure by Bliss to warn of potential dangers associated with the operation of the press:
"The court denies the motion. I could give a long dissertation as to why, but it would have nothing to do with being truthful with either party as far as the legal burden. It has to do with the current status of our appellate process and the appellate courts deciding cases in toto with not all of the whole portion of the case. And so, as a result, I’ll be on the cautious side. I totally disagree with the record, with the defendants’ contention that there is no evidence on this record which a reasonable jury could find that there was a duty to warn. But I would deny the motion. If it gets to the Court of Appeals, they can totally dispose of this case rather than remanding it to a trial court to waste double or triple time.
"With reference to the engineering design, there is evidence to establish a fact question. With the warning issue, there isn’t. But I’ll let it go to the jury.”
When the case was submitted to them, the jury was provided with a special verdict form. This form permitted them to apportion fault among plaintiff, Bliss and Kent Products, even though Kent Products was not a party to this action. The jury returned a verdict finding that plaintiffs injury was caused by the negligence of defendants Bliss and Kent Products, and apportioned 55% of the negligence to Bliss and 45% to Kent Products. The total amount of damages was assessed by the jury at $121,000.
Following the return of the jury’s verdict, plaintiff filed an amended complaint, adding Kent Products and The Home Indemnity Company as parties and seeking a declaratory judgment limiting the rights of these defendants to reimbursement of workers’ compensation benefits. Pursuant to stipulation of the parties present at the trial, the trial judge permitted amendment of plaintiffs complaint.
Both Kent Products and Home Indemnity objected to the amendment of plaintiffs complaint. On plaintiffs motion for entry of judgment, the trial judge rejected the arguments of Kent Products and Home Indemnity. He ordered that their right to reimbursement for workers’ compensation benefits paid to plaintiff be limited to amounts paid in excess of the sum of $54,450, the amount of damages attributable to Kent Products based on the jury’s apportionment of negligence. Kent Products and The Home Indemnity Company now appeal the lower court order permitting amendment of plaintiffs complaint. Defendant Bliss Company appeals the trial court’s denial of its motion for a directed verdict as to plaintiffs negligence count and the claimed error in the admission of evidence.
The argument of defendant Bliss raises two distinct issues. The question of whether there was a legal duty to warn under the facts of this case must be distinguished from the question of whether plaintiff presented sufficient evidence at trial on this theory to withstand a motion for directed verdict. Bliss argues that its motion for directed verdict should have been granted because as a matter of law there is no duty to warn or protect against dangers that are obvious or open. See Durkee v Cooper of Canada, Ltd, 99 Mich App 693; 298 NW2d 620 (1980).
Bliss relies principally upon the decision of the Supreme Court in Fisher v Johnson Milk Co, Inc, 383 Mich 158; 174 NW2d 752 (1970). In that case, the defendant had sold to plaintiff a wire carrier constructed to carry four half-gallon bottles of milk. Plaintiff was injured while transporting milk in the carrier when he slipped on a patch of ice, striking the carrier on the sidewalk, and breaking the bottles it held. In affirming the lower court’s grant of summary judgment for the defendant, the Supreme Court noted that there was no inherent, hidden, or concealed defect in the wire carrier. The possibility that the bottles it contained might break if the carrier were dropped on a hard surface could plainly be seen by anyone.
In the instant case, the power press operated by the plaintiff had obvious capacity to cause serious physical injury. However, the precise mechanical failure of the press that caused plaintiffs injuries was not readily apparent. Evidence introduced at trial indicates that plaintiffs injuries resulted from a mechanical failure within the clutch latch assembly of the press. This defect was not the type of obvious hazard considered by the Fisher Court. Indeed, the Fisher opinion, itself, distinguishes that case from the present one: "This is not the case of a piece of machinery, looking alright on the surface but containing a defect not observed or observable by plaintiff, which operated in such fashion, unexpectedly, as to be dangerous and to injure plaintiff.” Fisher, supra, p 162.
Nor was the duty to warn excused in this case because plaintiff was an experienced press operator. In Graham v Ryerson, 96 Mich App 480; 292 NW2d 704 (1980), this Court discredited the argument that there is no duty to warn "experts”.
As a general rule, the question of whether a duty exists is one that must be resolved by a trial judge as a matter of law. However, when the facts at trial are in dispute and give rise to a reasonable difference of opinion as to the foreseeability of a particular risk and the reasonableness of a defendant’s conduct in that regard, the jury should resolve the issue after proper instruction. Robertson v Swindell-Dressler Co, 82 Mich App 382; 267 NW2d 131 (1978). Our inquiry then turns to the issue of whether plaintiff presented sufficient evidence at trial to withstand defendant Bliss’s motion for a directed verdict.
A directed verdict is appropriate whenever a plaintiff fails to establish a prima facie case. In an action premised upon the alleged negligent failure to warn of a known danger, the plaintiff must supply sufficient evidence on each of the following four elements of that theory: that the defendant owed a duty to plaintiff; that the defendant violated that duty; that the defendant’s breach of the duty was a proximate cause of the injury suffered by the plaintiff; and, that the plaintiff suffered damages. Falkner v John E Fetzer, Inc, 113 Mich App 500; 317 NW2d 337 (1982); Beals v Walker, 98 Mich App 214; 296 NW2d 828 (1980). The fact that plaintiff suffered damages was not contested in this case.
With regard to the question of whether sufficient evidence was presented to make out a prima facie case that defendant owed a duty to plaintiff, the record indicates that in establishing this element plaintiff relied principally upon the testimony of a project engineer for defendant Bliss and upon the testimony of her expert. The testimony of Bliss’s project engineer tended to establish that the presses sold by Bliss were often hand-loaded in the shops that used them. He acknowledged that the hand-loading of presses, without point-of-operation safety devices, was unsafe and that amputations were a significant problem.
The thrust of the testimony of plaintiff’s expert, a professor of mechanical engineering at the University of Michigan, was that an adequate warning of the dangers associated with operating the press was not given by Bliss. Bliss argues on appeal that plaintiff’s expert was, impermissibly, allowed to reach legal conclusions in his testimony. We observe, however, that this objection was not made at trial. Rather, at trial, counsel for Bliss objected to the testimony of this witness only insofar as his competence and experience had not been established on the record. The testimony was not objected to because it embraced the ultimate fact. Absent the presence of manifest injustice, we cannot pass upon Bliss’s argument that the expert should not have been permitted to reach legal conclusion in his testimony for lack of such an objection at trial. Evidentiary objections must be specific and cite the precise ground for the objection. People v Worrell, 111 Mich App 27; 314 NW2d 516 (1981). Since the attorney for Bliss pursued this line of testimony on cross-examina tion of the witness, no manifest injustice has resulted which would permit defendant Bliss to now challenge the expert’s testimony on the ground that it embraced an ultimate fact or legal conclusion.
Considered as a whole, then, the evidence presented by plaintiff made out a prima facie case that defendant Bliss had a duty to warn press operators of the dangers associated with operating its presses.
As to the issue of Bliss’s breach of this duty, the testimony of its project engineer concedes the absence of any mention within the press manual of the possibility of an injury such as that sustained by plaintiff. Plaintiff’s expert characterized the manual as "substantially inadequate”. Further evidence of the breach of the duty to warn can be found in a letter sent by Bliss to Kent Products on November 12, 1975, approximately four weeks prior to plaintiff’s injury. This letter concerned the possibility of mechanical failure in the .clutch and latch bracket assemblies of Bliss presses. The project engineer for Bliss agreed that the letter did not characterize the potential mechanical failure as a "safety problem”, i.e., it did not indicate that there was a possibility of injury if the mechanical failure actually occurred. Nor did it clearly state that a press could go into the automatic cycle unexpectedly if the mechanical failure occurred. Plaintiff’s expert testified that the letter was not adequate warning of the potential for danger because of its failure to delineate the possibility of severe consequences resulting from the loss of contact between the latch and clutch assemblies.
Finally, the testimony of plaintiff herself has some bearing on this question. She testified that she was not aware of the possibility of injury from the press when it was operating in apparently good mechanical condition. On the day of the injury, she had no indication that the press was not in good working condition. Therefore, we conclude that, even though the evidence on the question of whether Bliss breached its duty to warn was conflicting, plaintiffs evidence on this point made out a prima facie case. The final element requiring some quantum of proof to withstand the motion was a showing that the breach by Bliss was a proximate cause of her injuries. Thus, plaintiff needed to produce evidence showing that if a proper warning had been given, she would have taken precautions to prevent the injury. Falkner, supra.
The evidence as to the possible effect that such a warning directed to the plaintiff herself would have had is in dispute. On cross-examination, plaintiff revealed that she knew of similar accidents that had occurred to press operators. Further, she admitted that a hypothetical sign on a press warning of possible injury if an operator placed his or her hands in the die space would not have told her anything that she did not already know. However, she also testified that, if a sign had been placed on the press to the effect that a hand placed in the die space could be crushed or amputated, she would not have placed her hands within the space. The jury could have reconciled this testimony by interpreting it in the light of plaintiff’s subsequent testimony that she thought she was in no danger of injury if the press were working properly. That is, the jury could have concluded that, had plaintiff known that a press which appeared to be in good mechanical condition could still cause the kind of injury that she sustained, she might have taken some precaution to insure against the possibility of such injury. Thus, there was evidence in the record upon which the jury reasonably could have concluded that the failure by Bliss to warn of possible physical injury was a proximate cause of plaintiffs injuries.
Defendant Bliss correctly points out that plaintiffs employer was not entirely free from negligence in the maintenance of the press. However, the testimony of Kent Products’ maintenance personnel is equivocal. The person in charge of maintenance at Kent testified that, although he inspected the latch mechanism on plaintiffs press on the day of the accident, he did not inspect the stop pin because he was not fully aware of its function. Further, the manager of the Kent Products plant testified that he would have "reacted differently” to the November 12, 1975, letter from defendant Bliss had that letter advised that a failure of the safety pin would create an unsafe situation. When considered as a whole, the evidence can be read to establish that Kent Products was not fully aware of the consequences of the mechanical shortcomings in the clutch and latch assemblies and that it might have altered its maintenance practices had a more specific and compelling warning been given. Therefore, we conclude that plaintiff had presented sufficient evidence to establish a prima facie case that the failure of defendant Bliss to give adequate warnings was a proximate cause of her injuries.
The trial judge correctly denied defendant Bliss’s motion for a directed verdict on plaintiffs negligence count. Plaintiff’s evidence did make out a prima facie cause of action.
Defendant Bliss next argues that error occurred when testimony concerning its practice of putting warning tags on the presses it sold after 1965 was admitted in evidence at trial. It argues that evidence of this practice, which began four years after the press that caused plaintiffs injuries was sold to Kent Products, was not properly admitted.
As a general rule, evidence of remedial measures undertaken by a defendant subsequent to a tortious event is not competent to prove negligence:
"When, after an event, measures are taken which, if taken previously would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment.” MRE 407.
In the instant case, the remedial measures referred to occurred four years after the claimed negligent act of selling the press involved in this case without a warning placard. During oral argument, the attorney for the plaintiff repeatedly stressed that the delivery of the press, in 1961, without a warning tag or placard affixed to it was the breach of duty that formed the core of plaintiffs negligence count. Under the present circumstances, then, the public policy justification underlying MRE 407 was violated by admission of this evidence. As this Court stated in Phillips v JL Hudson Co, 79 Mich App 425, 426-427; 263 NW2d 3 (1977):
"The primary rationale for the rule is that admission of such evidence would discourage owners from attempting preventative repair because of the fear that evidence of such acts might be construed as an admission of prior culpable conduct.”
A manufacturer should be as free as possible to make continual improvements in the safety of its products without having to evaluate the possibility of creating evidence against itself from previously manufactured products. Certainly, it is less likely that safety improvements will be made if the decisions to make them involve balancing the safety of the consumer against the potential effect on liability for previously manufactured products.
The most significant issue at trial was whether defendant Bliss violated a duty to warn users of its presses of their potentially dangerous characteristics. The trial judge recognized the closeness of this issue. The admission into evidence of the tags attached to presses manufactured by Bliss after 1965 was so highly prejudicial as to deny Bliss a fair trial. Therefore, we must reverse and remand for a new trial.
Two additional related issues require comment because of the likelihood that they will arise on retrial. Defendants Kent Products and Home Indemnity argue that the trial judge erred in instructing the jury to apportion damages between themselves and Bliss. They also contend that it was an error for the trial judge to enter judgment against them limiting their right to reimbursement for workers’ compensation payments to reflect the finding of the jury that Kent Products was 45% responsible for plaintiffs injuries.
When an employee’s injury is within the scope of the Worker’s Disability Compensation Act, workers’ compensation benefits are the employee’s exclusive remedy against the employer. MCL 418.131; MSA 17.237(131); Szydlowski v General Motors Corp, 397 Mich 356, 358; 245 NW2d 26 (1976); Solakis v Roberts, 395 Mich 13, 20; 233 NW2d 1 (1975); Bednarski v General Motors Corp, 88 Mich App 482, 484; 276 NW2d 624 (1979). Thus, the exclusive remedy provision of the act bars any common-law tort cause of action by an employee against his employer. Sewell v Bathey Mfg Co, 103 Mich App 732, 736; 303 NW2d 876 (1981); Milton v Oakland County, 50 Mich App 279, 283; 213 NW2d 250 (1973). Once the employer has paid the workers’ compensation claims, the employer has no common-law liability and is not a joint tortfeasor with the manufacturer of malfunctioning equipment against whom the employee seeks recovery for injuries. Husted v Consumers Power Co, 376 Mich 41; 135 NW2d 370 (1965).
In Husted, the plaintiff was injured when the crane he was operating came into contact with power lines of defendant, Consumers Power Company. Consumers filed a third-party complaint against plaintiff Husted’s employer, Hertel-Dego, charging negligence on the employer’s part and demanding contribution. The Court stated:
"Thus, if Husted could not sue his employer (Hertel-Dego), and we know he could not, Hertel-Dego and Consumers cannot be joint tort-feasors by law. Consumers, therefore, cannot sue Hertel-Dego for contribution should it be held to respond to plaintiff in damages.” 376 Mich 56.
The rationale behind denying third-party tortfeasors a right of contribution against a negligent employer was aptly stated in Douglas v Robbins & Myers, Inc, 505 F Supp 765, 769 (WD Mich, 1980).
"To hold otherwise destroys the quid, pro quo of workers’ compensation as it is known in Michigan. Under the statutory scheme, an injured employee is entitled to prompt payments from his employer for certain work-related injuries regardless of the fault or lack of fault of his employer. In exchange, the employer is granted immunity from further liability arising out of that injury. See Husted [v Consumers Power Co], 376 Mich [41], 52-53; 135 NW2d 376. The legislature and the Supreme Court of Michigan were certainly aware of this statutory scheme and the balancing involved in the workers’ compensation statute when they introduced comparative negligence to Michigan and there is nothing to indicate an inclination by those lawmakers to alter that balance through comparative negligence. Any such adjustment must be undertaken openly and forthrightly by the Michigan legislature.”
In the case at bar the trial court erred in instructing the jury to apportion negligence between the employer, Kent Products, and the manufacturer, Bliss. Furthermore, the trial court compounded this error by allowing the reimbursement of the employer and its insurer to be reduced by a percentage determined by the negligence of the employer.
The employer’s right to be reimbursed from a judgment recovered by an employee from a third-party tortfeasor is statutory. MCL 418.827(5); MSA 17.237(827)(5). This section states:
"(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall ñrst reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.” (Emphasis added.)
The right to reimbursement was also embodied in the prior workers’ compensation act, MCL 413.15; MSA 17.189. It has even been found to be a common-law subrogation right. In Hix v Besser Co, 19 Mich App 468; 172 NW2d 821 (1969), the Court of Appeals went so far as to call reimbursement of the employer or his compensation carrier the primary reason for allowing an action by the employee against a third party. Only after the employer is reimbursed does the employee receive the excess which remains. Hix, supra; Manninen v Warner & Swasey Co, 80 Mich App 253; 263 NW2d 341 (1977). The only qualification which may reduce the reimbursement to the employer would be an insufficiency in the amount of the judgment awarded. Banoski v Moto-Crane Service, Inc, 35 Mich App 487; 192 NW2d 555 (1971).
The employer’s right to reimbursement stems from its liability to pay compensation in the first place. Griggs v Budd Co, 90 Mich App 649; 282 NW2d 431 (1979). The employer is entitled to recover all payments made up to the time of trial. Ford v Kuehne, 242 Mich 428; 219 NW 680 (1928); Grand Rapids v Crocker, 219 Mich 178; 189 NW 221 (1922). The employer, having paid compensation, may recover against the negligent third person, regardless of whether the payment was in full. Albert A Albrecht Co v Whitehead & Kales Iron Works, 200 Mich 109; 166 NW 855 (1918). In fact, where the employer remains obligated to make compensation payments to the employee, the employer must be credited with that amount still payable and be reimbursed for those future payments out of the judgment as well. Crawley v Schick, 48 Mich App 728; 211 NW2d 217 (1973).
The relationship of an employer paying workers’ compensation to an injured employee and a third-party tortfeasor is that of indemnitor (employee)/ indemnitee (employer) with the liability falling on the third party. Bay State Milling Co, for use and benefit of Hartford Accident & Indemnity Co v Izak, 310 Mich 601; 17 NW2d 769 (1945). Thus, the employer is subrogated to the rights of the employee, both under the statutory language and by the continuing construction of the courts. As a result of this relationship, only defenses of the third party which are available against the employee are available against the employer. Utley v Taylor & Gaskin, Inc, 305 Mich 561; 9 NW2d 842 (1943); Stafford v E W Bliss Co, 86 Mich App 197; 272 NW2d 237 (1978).
The contributory negligence of the employee thus barred the subrogation rights of his employer. Hekman Biscuit Co for the use and benefit of Royal Indemnity Co v Commercial Credit Co, 291 Mich 156; 289 NW 113 (1939). Contributory negligence of the employer, on the other hand, was no bar to the recovery of the employee. Stafford v E W Bliss Co, supra. Although under this section the employer may enforce the liability of the third-party tortfeasor, the employer’s right to recover is that of the injured employee. The test of liability is whether the employee could have held the tortfeasor liable for his injuries. Ayers v Genter, 367 Mich 675; 117 NW2d 38 (1962).
Consequently, the trial court misunderstood the statutory reimbursement right when it permitted reduction in the amount the employer could recover out of the employee’s judgment. The employer is entitled to complete reimbursement even if that eliminates any share for the employee. Howeyer, if the judgment is not large enough to totally recompense the employer, he can not collect a deficiency from the employee. Albrecht, supra.
Finally, we are not persuaded by defendant Bliss’s argument that the adoption of comparative negligence in Michigan affects the employer’s right of reimbursement. The adoption of comparative negligence by the Michigan Supreme Court in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), did not affect the legal position of the parties under the Worker’s Disability Compensation Act. Placek deals only with the balancing of the relative degrees of negligence attributable to the plaintiff and defendant here, Ms. Downie and Bliss. In Placek, the Court, quoting from Kirby v Larson, 400 Mich 585, 644; 256 NW2d 400 (1977), said:
"The doctrine of pure comparative negligence does not allow one at fault to recover for one’s own fault, because damages are reduced in proportion to the contribution of that person’s negligence, whatever that proportion is. The wrongdoer does not recover to the extent of his fault, but only to the extent of the fault of others. To assume that in most cases the plaintiff is more negligent than the defendant is an argument not based on equity or justice on the facts. What pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice.” 405 Mich 661.
On remand, the trial court may not allow the jury to consider the negligence of the employer in determining the award to the plaintiff against the third party, Bliss. Nor may the indemnification rights of the employer and its insurer be reduced by any percentage. To do so would fly in the face of the clear statutory language. Although defendant Bliss, in its brief, cites cases from sister states which permit the reduction of an employer’s recovery by the percentage of negligence attributed to the employer, the Michigan statute cannot reason ably be construed in this fashion. Nor can we agree that allowing Kent Products to recoup the amounts paid out in compensation without considering its negligence serves to promote employer disregard of safety. The Legislature may decide that such is the case, but until it does, we are not free to change the statutory scheme developed over many years.
The policy underlying the workers’ compensation scheme is prompt payment to an injured employee by funds from the industry in which he is employed, while limiting the liability of the employer by shielding it from common-law tort actions. Lahti v Fosterling, 357 Mich 578, 585; 99 NW2d 490 (1959). Both employee and employer receive certain clear benefits from the scheme but, in return, surrender certain other rights. If the employer’s right to reimbursement rested solely on common-law subrogation, perhaps the court would have the right to modify this right to conform to the underlying principles announced in Placek. However, the workers’ compensation system is wholly a creature of statute. The court is not free to redraw the statute because of the change in tort concept brought about by Placek.
On remand, the trial court may not permit the jury to consider the negligence of Kent Products in determining the liability of Bliss to plaintiff Downie, nor may it reduce Kent’s recovery out of her judgment by any amount perceived to be related to its responsibility for plaintiff’s injuries.
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On Remand
Before: Cynar, P.J., and J. H. Gillis and Allen, JJ.
J. H. Gillis, J.
Chutzpah — a delightful Yiddish expression loosely defined as gall. In this panel’s prior opinion in this cause, our beloved colleague, Judge Nathan J. Kaufman, gave us a classic example of chutzpah, to wit: a defendant who, about to be sentenced for murdering his parents, begs the mercy of the sentencing court because he is an orphan.
This case presents another splendid example of chutzpah. The defendant, West Traverse Township, claims title to the land in question by adverse possession, even though it continued to assess and collect taxes on the property.
The relevant facts are accurately set forth in the dissenting opinion. Our review of the record convinces us that the trial court clearly erred in finding that plaintiffs were not assessed and did not pay taxes on the subject property.
It is undisputed that the land descriptions contained in the property tax bills sent to and paid by plaintiffs included the property which defendant now claims by adverse possession. Before this suit was tried, interrogatories were sent by plaintiffs to defendant. Plaintiffs Bachus’ interrogatories numbers 7 and 8 asked:
"Does West Traverse Township admit that the plaintiffs and their predecessors in title have been assessed for taxes on land described in paragraph 1 of plaintiff’s complaint[ ] for more than forty (40) years?
"Does West Traverse Township admit that the taxes assessed on the land described in paragraph 1 of plaintiffs complaint have been paid?”
Defendant’s answers to each of these interrogatories was "yes”.
These interrogatories address the precise question now before this Court. How, then, can defendant maintain that the taxes were not assessed and paid?
The dissenting opinion places great emphasis on the fact that these interrogatories were in the file at the time the Supreme Court remanded the case to the trial court for an evidentiary hearing. The dissenting opinion concludes that since the Supreme Court did not rule in favor of plaintiffs on the initial appeal, this Court cannot now reverse unless it makes "the dubious assumption that the Supreme Court did not know of the interrogatories and defendant’s response thereto”. We fail to see the logic of that conclusion. In our opinion the Supreme Court, in remanding the matter to this Court for reconsideration in light of the trial court’s findings, intended this Court to give continued credence to the existing record, including the above-quoted interrogatories. Defendant’s answers to those interrogatories created some evidence that plaintiffs were assessed and paid taxes on the disputed parcel. The Supreme Court’s remand to the trial court for an evidentiary hearing merely afforded defendant the opportunity to rebut that evidence. In our view, defendant clearly failed to do so.
Defendant contends that, while the property descriptions in the assessments included the disputed "park” area, plaintiffs were not actually taxed on that land. This position is based on the hearing testimony of the township’s former tax assessor, who was in office from 1942 through 1968. The assessor testified that during his term in office there were no guidelines for appraising property, and that he made the assessments on a lump sum rather than per acre basis. He stated that although the descriptions in the tax bills included the disputed "park” area, in his own mind, he excluded that subject property from the assessed valuation because he knew it was being used as a township park. However, the assessor was unable to state the amount which he subtracted for the "park” area. Moreover, except for a general assertion regarding his treatment of highway property, he was unable to recall any other instance in which township property was included in the tax description of a private landowner but mentally excluded during the assessment process.
The salient fact, which is undisputed, is that plaintiffs were never advised that the "park” area had been excluded from the total assessed values of their properties. Throughout the statutory period, plaintiffs believed, and justifiably relied on the belief, that they were paying taxes on the subject parcel. It was the township’s duty to notify plaintiffs that the "park” area was being excluded from the assessed values of their land. Had plaintiffs known that the assessed taxes pertained only to a portion of the land described in their tax bills, they may well have chosen to appeal those assessments. Moreover, had plaintiffs been timely informed that the property was being excluded from their total tax assessments, they could easily have taken some other action to exercise their ownership rights in the property and thereby defeated defendant’s claim of adverse possession.
In reviewing both the evidentiary hearing transcript and the pre-existing record, we are left with a definite and firm conviction that a mistake has been committed. In our view, the assessor’s testimony that he subtracted in pectore the value of the "park” area from the total assessed valuations of plaintiffs’ properties is insufficient to overcome the contrary evidence created by defendant’s answers to the interrogatories.
We hold that the trial court clearly erred in finding that plaintiffs were not assessed and did not pay taxes on the property in question. Accordingly, we reaffirm this panel’s earlier holding that defendant failed to establish the element of hostile use necessary to create title by adverse possession.
The finding of the trial court is reversed.
Cynar, P.J., concurred.
Bachus v West Traverse Twp, 107 Mich App 743, 749, fn 1; 310 NW2d 1 (1981), remanded 412 Mich 870 (1981).
Paragraph 1 of plaintiffs Bachus’ complaint described the southern half of the subject parcel, of which the Bachuses are record titleholders.
Similar interrogatories were submitted by plaintiffs Cummings, to which the township responded in the affirmative.
In the Roman Catholic Church the pontiff announces the appointment of a designated number of Cardinals and may sometimes not disclose all of them by name. If the Cardinal who was appointed is from an iron curtain country, the appointment is made in pectore, which means "in the breast”. The name is not disclosed for fear that some harm might come to the recipient of this honor. | [
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Pee Curiam.
Defendant, Stanley Earl Tucker, was convicted, on his pleas of guilty, of two counts of armed robbery, MCL 750.529; MSA 28.797, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). Pursuant to an agreement reached during plea negotiations, he was sentenced to concurrent prison terms of five to ten years on the armed robbery convictions and to the mandatory two-year consecutive term on the felony-firearm conviction.
The record contains no indication that defendant was advised that armed robbery is a nonprobationable offense. On the authority of People v Rogers, 412 Mich 669; 316 NW2d 701 (1982), we reverse defendant’s convictions for this failure of the plea- taking judge to comply with GCR 1963, 785.70.Xf). Even the existence of a sentence bargain in this case does not render inapplicable the Supreme Court’s imposition of the sanction of automatic reversal for failure of the plea-taking judge to advise defendant that he could not be placed on probation. People v Greene, 414 Mich 896 (1982), rev’g 116 Mich App 205; 323 NW2d 337 (1982).
Reversed.
See, also, People v Crawford, 115 Mich App 516, 518; 321 NW2d 717 (1982), where this Court described the Rogers holding:
"The Court then held that noncompliance with subsection (f) requires reversal and apparently always has.” (Emphasis supplied.)
Because defendant was present when, apparently addressing the codefendant, the court stated that, "[AJrmed robbery is a felony punishable by a maximum term of life or any number of years,” we are not persuaded that there was fatal noncompliance with GCR 1963, 785.7(1), subds (b) and (d). It is clear that defendant’s pleas were understandingly made. Compare People v Jones, 410 Mich 407; 301 NW2d 822 (1981). Also, see People v Taylor, 112 Mich App 94; 315 NW2d 202 (1981). | [
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Per Curiam.
After a preliminary examination held on February 23, 1981, defendant, Tyrone E. Glenn, was bound over for trial on charges of assault with intent to commit great bodily harm less than murder, in violation of MCL 750.84; MSA 28.279, and possession of a firearm in the commission of a felony, in violation of MCL 750.227b; MSA 28.424(2). On March 20, 1981, the trial court granted defendant’s motion to dismiss the felony-firearm count. Thereafter, defendant pled guilty to the lesser included offense of felonious assault, in violation of MCL 750.82; MSA 28.277, and, on April 6, 1981, he was sentenced to two years probation, with the last six months to be served in the county jail. From the trial court’s dismissal of the felony-firearm charge, the prosecutor appeals by delayed appeal granted.
At the preliminary examination, the complainant, Lamont Horne, testified that on the afternoon of February 6, 1981, defendant stabbed him with an ice pick and repeatedly struck him on the head with a small caliber pistol. In dismissing the felony-firearm charge, the trial judge ruled that defendant’s employment of the pistol as a bludgeon did not constitute conduct proscribed by the felony-firearm statute.
On appeal, the prosecutor maintains that the trial court erred in dismissing the charge since the felony-firearm statute prohibits the possession, rather than the use, of a firearm at the time of the commission or attempted commission of a felony. Defendant responds that the statute is inapplicable to instances where an assailant uses a firearm as a bludgeon.
Resolution of this issue is controlled adversely to defendant by People v Elowe, where this Court, in a well-reasoned opinion, held that if a defendant had possession of a firearm at the time he committed or attempted to commit a felony, the felony-firearm statute applies even though the defendant did not use the weapon during the perpetration or attempted perpetration of a felony. In Elowe, the defendant was charged in a two count information with delivery of a controlled substance and possession of a firearm in the commission of a felony. The trial court dismissed the felony-firearm count because it found that no connection existed between the act of possession of the firearm and the commission of the felony. In reinstating the felony-firearm charge, the Elowe Court stated:
"The purpose of the felony-firearm statute is to deter the use of handguns during the course of a felony and to assure the punishment of persons who possess handguns during the perpetration of a felony. The goal of deterrence is better achieved without adding the requirement of a 'nexus’ between the firearm and the felony. By punishing the 'possession’, as opposed to 'use’, of a firearm during the commission of a felony, the Legislature was attempting to reduce the possibility of injury to victims, passersby and police officers. Had defendant’s criminal enterprise gone awry, he may well have been tempted to use his firearm to effect an escape. The mere fact that a felon has a firearm at his disposal, should he need it, creates a sufficient enough risk to others that it is within the state’s power to punish its possession. Moreover, the statute as written may act to deter the felony itself. Certainly some prospective felons may lack the courage to even attempt the crime without the added protection of a firearm. Thus, the statute’s goal of deterrence, which is essentially directed toward the use of firearms during felonies, may extend to the felony itself, by virtue of the prohibition against the possession of a firearm during the course of a felony. This additional deterrence is both desirable and consistent with the goals of the criminal law generally.” (Footnote omitted. Emphasis in original.)
Similarly, in People v McGore, We held that the defendant’s possession of a firearm while committing the felony of possession of heroin fell within the scope of the felony-firearm statute.
Accordingly, based on the foregoing cases, we conclude that the trial court herein erred in dismissing the felony-firearm charge. When a defendant has a firearm in his possession while committing a felony or where, as here, he uses the firearm as a striking instrument to accomplish the felony, his conduct falls within the ambit of the statute which prohibits the possession of a firearm during the commission of a felony.
Reversed and remanded for trial on the felony-firearm charge.
On January 13, 1982, defendant pled guilty to violation of probation, MCL 771.4; MSA 28.1134, and was sentenced to serve not less than one year nor more than four years in prison.
85 Mich App 744; 272 NW2d 596 (1978).
85 Mich App 744, 748-749.
88 Mich App 259; 277 NW2d 1 (1979), modified 406 Mich 1019 (1979). | [
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] |
After Remand
Before: Bronson, P.J., and Beasley and D. C. Riley, JJ.
D. C. Riley, J.
On November 29, 1978, following a bench trial in Detroit Recorder’s Court, defendants Frank and Joseph LeFlore were convicted of unarmed robbery. Defendant Joseph LeFlore was also convicted of assault with intent to murder. Defendant Frank LeFlore was sentenced to from 7 to 15 years in prison and Joseph LeFlore was sentenced to from 10 to 15 years in prison for the unarmed robbery conviction and to life in prison for the assault with intent to murder conviction. Defendants appealed as of right and on April 2, 1980, this Court remanded the case to the trial court to inquire into the allegation of missing res gestae witnesses pursuant to the procedure set forth in People v Pearson, 404 Mich 698, 722-723; 273 NW2d 856 (1979). See People v LeFlore, 96 Mich App 557; 293 NW2d 628 (1980). Additionally, the trial court was directed to make specific findings of fact as to whether defendants possessed a larcenous intent at the time of the assault as required by People v Chamblis, 395 Mich 408, 424; 236 NW2d 473 (1975). LeFlore, supra.
Accordingly, the trial court made specific findings of fact with regard to the issue of defendants’ intent and concluded that defendants did in fact possess a larcenous intent at the time that they assaulted the complainant. The trial court also conducted a Robinson hearing (People v Robinson, 390 Mich 629; 213 NW2d 106 [1973]) on the issue of the allegedly missing res gestae witnesses and, after taking testimony, the court concluded that although one Oliver White was a res gestae witness, the prosecution exercised due diligence in its efforts to locate and subpoena him. The court also found that White’s testimony would have been cumulative.
At the Robinson hearing, it was discovered that a "meat clerk” at the store where the incident began may have been a res gestae witness. The owner of the store testified that the meat clerk was probably his brother-in-law. The trial court recessed the evidentiary hearing for several days in order to bring the meat clerk to the court to testify. The meat clerk testified that he had no recollection of whether he had worked on the day of the incident, no recollection of the incident, did not see a fight and was never questioned by the police. From that testimony, the court concluded that the meat clerk was not a res gestae witness and that no prejudice to the defendants could possibly have resulted from the failure to produce him at the trial.
Defendants now continue their appeals after completion of the remand ordered by this Court, raising several issues for our consideration.
First, defendants herein claim that the prosecutor failed to produce the individual who was the meat clerk on the day of the incident and that under the rule of People v Pearson, supra, it must be presumed that defendants were prejudiced by the prosecution’s failure to produce that witness.
A res gestae witness has been defined as "an eyewitness to some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense”. People v Hadley, 67 Mich App 688, 690; 242 NW2d 32 (1976).
Assuming, without deciding, that the clerk was a res gestae witness, it is clear that defendants suffered no prejudice as a result of the prosecution’s failure to endorse his name on the information or produce him at the trial. The testimony taken at the Robinson hearing revealed that, at best, the meat clerk may have witnessed certain events which occurred inside the store. It is clear that the meat clerk would have been unable to witness the actual crimes because they occurred in a parking lot across the street from the store. Here, the prosecution established that the testimony of the meat clerk would have been of no assistance to the defendants. Thus, the absence of said testimony constituted harmless error; therefore, defendants’ convictions need not be reversed on that basis. People v Pearson, supra, pp 725-726.
Similarly, we reject defendants’ contentions that the prosecution’s failure to endorse or produce Oliver White necessitates reversal. The trial court found that due diligence had been shown with respect to this witness. Such a finding will not be reversed absent a clear abuse of discretion. People v Bersine, 48 Mich App 295, 302; 210 NW2d 501 (1973). A police officer’s attempts to locate Mr. White included several visits to both his place of employment and his home address, only to discover that no one named Oliver White was at either address. Due diligence is defined as doing everything reasonable, not everything possible, People v Moreno, 112 Mich App 631; 317 NW2d 201 (1981). Based upon those facts, we find no abuse of the trial court’s discretion in determining that the prosecution exercised due diligence.
Further, we reject defendants’ contentions that the trial court’s finding that they possessed a larcenous intent at the time of the assault was clearly erroneous. Findings of fact are clearly erroneous where the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. William C Reichenbach Co v State of Michigan, 94 Mich App 323; 288 NW2d 622 (1979). With respect to this issue, the trial court made specific findings of fact and concluded that the defendants committed an assault upon the complainant with the intent to take her money. Based upon a review of the record, we are not left with the conviction that a mistake has been committed.
Finally, we note that defendant Joseph LeFlore has raised several issues for the first time on appeal in his brief after remand. Inasmuch as these issues are outside the scope of our order of remand, they are not properly before this Court. People v Jones, 394 Mich 434; 231 NW2d 649 (1975).
Affirmed. | [
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Per Curiam.
Defendant appeals by right his April 30, 1981, conviction by a jury of delivery of heroin, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). He was sentenced to a term of from 5 to 20 years in prison, to be served concurrently with a 1- to 5-year parole violation sentence.
Defendant first argues that the prosecution should have endorsed as res gestae witnesses the "approximately 40” patrons from the bar in which the transaction occurred. MCL 767.40; MSA 28.980 requires the prosecutor to endorse on the information all res gestae witnesses known at filing time. In this regard, the prosecution is required to diligently attempt to discover the existence of any possible res gestae witnesses. People v Rivera, 114 Mich App 419; 319 NW2d 355 (1982). However, defendant failed to preserve this issue for appeal. People v Willie Pearson, 404 Mich 698, 722-723; 273 NW2d 856 (1979), requires defendant to seek a hearing during trial or to seek a new trial before appealing.
Defendant next contends that the prosecutor distorted the record in his closing argument. However, the prosecutor may comment on and draw reasonable inferences from the evidence. People v Riemersma, 104 Mich App 773; 306 NW2d 340 (1981). In the instant case, the remarks were proper; they contained only reasonable inferences from the evidence presented at trial. Furthermore, they were made only in response to an argument by defense counsel in his closing statement. See People v Allen, 351 Mich 535; 88 NW2d 433 (1958).
Defendant last argues that he was deprived of effective assistance of counsel. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), set up a bifurcated test for analyzing such claims. The first branch requires a defense lawyer to "perform at least as well as a lawyer with ordinary training and skill in the criminal law and [to] conscientiously protect his client’s interests, undeflected by conflicting considerations”. Beasley v United States, 491 F2d 687, 696 (CA 6, 1974). Because this is a Sixth Amendment right, harmless error does not apply. People v Jenkins, 99 Mich App 518; 297 NW2d 706 (1980).
Garcia’s second branch requires appellate courts to examine particular mistakes of counsel to safeguard a defendant’s right to a fair trial. This Court will reverse a defendant’s conviction if, but for defense counsel’s serious mistake, defendant would have had a reasonably likely chance of acquittal. People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969).
Defendant alleges three "serious mistakes”. He first contends that defense counsel should have requested a Robinson hearing (and failed to investigate this issue) and that he should have objected to the prosecutor’s alleged misrepresentations in closing argument. However, we do not believe that, had defense counsel demanded the alleged missing res gestae witnesses’ presence, defendant would have had a reasonably likely chance of acquittal. First, we doubt that they were res gestae witnesses. The bar was dimly lit and fairly crowded. It is not likely that many of them would have noticed a covert narcotics transaction. Second, as explained later, we find the evidence against defendant to be very strong.
Furthermore, defendant has failed to show that defense counsel in fact failed to investigate the issue of the missing res gestae witnesses. Because appellate counsel for defendant failed to move for a hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), this Court is left to speculate on if and why defense counsel failed to investigate potential res gestae witnesses. We can only assume that defense counsel’s decision was a matter of trial strategy which should not be questioned. People v Burns, 118 Mich App 242; 324 NW2d 589 (1982). We also note that the prosecutor did not misrepresent the facts during rebuttal argument.
The last allegation is far more serious, however. Defense counsel impeached defendant with evidence of a prior conviction for attempted possession of heroin. In fact, he also failed to file a motion in limine to exclude the evidence of this prior conviction. A defense counsel’s failure to file such a motion does not under all circumstances violate Garcia’s first prong. People v McShan, 120 Mich App 496; 327 NW2d 509 (1982); People v Elijah Smith, 68 Mich App 551; 243 NW2d 681 (1976). Obviously, a defense lawyer is most likely not failing to perform at least as well as a lawyer with ordinary training and skill in criminal law by failing to attempt to suppress evidence of a prior perjury conviction. However, under certain circumstances, a single mistake can be just such a mistake that defendant is denied his Sixth Amendment right even despite an otherwise outstanding courtroom performance. In other words, a mistake can be so monumental that it can in and of itself deprive a defendant of his Sixth Amendment right to effective assistance of counsel. A defense counsel performing at least as well as a criminal lawyer with ordinary skill and training would not have committed such a mistake. United States v Baynes, 687 F2d 659 (CA 3, 1982); Moore v United States, 432 F2d 730, 739 (CA 3, 1970). See also People v Lewis, 64 Mich App 175, 182-184; 235 NW2d 100 (1975), lv den 395 Mich 810 (1975). In People v Fisher, 119 Mich App 445; 326 NW2d 537 (1982), this Court reversed on Garcia's first prong where defense counsel stated in closing argument: "We suggest that the Court find him guilty but mentally ill on such counts that the Court feels.” This argument was held to be the functional equivalent of a guilty plea. Wiley v Sowders, 647 F2d 642 (CA 6, 1981), cert den 454 US 1091; 102 S Ct 656; 70 L Ed 2d 630 (1981). The rest of defense counsel’s courtroom work was not even mentioned.
People v Perez, 83 Cal App 3d 718; 148 Cal Rptr 90 (1978), found a Sixth Amendment violation where the defense counsel impeached defendant, charged with selling heroin, with evidence of a prior possession of heroin violation. See also People v Gonzales, 37 Colo App 8; 543 P2d 72 (1975).* * In fact, one judge on this Court found Garcia’s first prong violated where defense counsel after failing to file a motion in limine impeached the defendant with evidence of two unspecified felony convictions (armed robbery and attempted armed robbery). McShan, supra (Maher, J., dissenting). However, we do not believe that defense counsel’s performance in this case deprived defendant of his Sixth Amendment right to effective assistance of counsel.
Even so, defense counsel definitely committed a serious mistake. People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), ruled that a trial judge must weigh the nature of the prior offense and the similarity between the prior and present offense in exercising his discretion whether or not to exclude evidence of the prior offense. Based on this standard, a trial judge would have abused his discretion if he had ruled that the prosecutor would be able to impeach defendant with evidence of this particular prior conviction. First, we note:
"The prior offense of possession of heroin is one which has practically no probative value for impeachment purposes, since it does not pertain to the character-impeaching traits of dishonesty or lack of veracity.” Perez, supra, 83 Cal App 3d 733. (Emphasis deleted.)
Second, the two offenses are very similar. People v Williams, 413 Mich 72; 318 NW2d 462 (1982); People v Hughes, 411 Mich 517; 309 NW2d 525 (1981); People v Oliver, 407 Mich 857; 283 NW2d 502 (1979). As such, defense counsel impeached his own client with highly prejudicial evidence of very little relevance.
However, even though this mistake was very serious, we do not believe that defendant would have had a reasonably likely chance of otherwise being acquitted. The evidence against defendant was very strong. Detroit Police Officer John Autry went into Gene’s Bar on January 2, 1981, where he met defendant. After telling defendant he wanted to buy some heroin, he gave him $23 in marked secret service money. Defendant gave the money to another patron in exchange for the heroin which he gave to Autrey. Autrey then left the bar, went to his partners in the patrol car outside the bar and broadcast a description of the two suspects. He described defendant as being 5'8", 150 pounds, and wearing a red skull cap, a blue parka jacket, and blue jeans. Other police officers immediately entered the bar and detained its patrons until Autrey made a positive identification. Defendant was the only one in the bar wearing a red cap. The marked money was recovered from the second patron. Despite this or any other alleged serious mistake, we do not believe that defendant would otherwise have had a reasonably likely chance of acquittal. See People v Coyle, 104 Mich App 636; 305 NW2d 275 (1981). We note that eight-year veterans of the police force have more likely developed better observation skills than civilian eyewitnesses. See People v Starks, 107 Mich App 377, 381; 309 NW2d 556 (1981), lv den 413 Mich 901 (1982).
Affirmed.
Defense counsel also impeached defendant with evidence of prior convictions for breaking and entering and UDAA.
We realize that Degraffenreid's first prong "focuses attention on the entire representation of the accused by his lawyer”. 19 Mich App 711. However, Degraffenreid used the sham trial standard for its first prong. This standard was overruled when Garcia adopted Beasley's ordinary training and skill standard.
We do note, however, that neither California nor Colorado use Michigan’s bifurcated approach to ineffective assistance of counsel arguments. See 2 ALR4th 27.
Crawford’s third factor, the effect on the decisional process if the defendant decides not to testify, is irrelevant here.
Undoubtedly, defense counsel hoped to take the sting out of defendant’s having been previously convicted by raising the issue himself. However, his "inexplicable failure to file a motion in limine to suppress evidence of his client’s prior convictions cannot be fairly characterized as ’trial strategy’ ”. McShan, supra (Maher, J., dissenting), 120 Mich App 496. Before defense counsel impeaches his own client with a prior conviction, he should consider the following:
"[CJounsel should be convinced that * * * the convictions would properly be admissible to impeach the defendant’s credibility. In the absence of such certainty, counsel would be acting 'ineffectively’ if he introduced an aspect of his client’s criminal record which was, in fact, not competent evidence”. Commonwealth v Zapata, 455 Pa 205, 208; 314 A2d 299 (1974). | [
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Per Curiam.
In the Recorder’s Court of Detroit, the defendant was convicted in a bench trial of a misdemeanor, assault and battery, in violation of MCL 750.81; MSA 28.276. Defendant appeals as of right.
Defendant’s first two issues concern Recorder’s Court Rule (RCR) 7, § 5, which was in effect at the time of the defendant’s trial. Defendant first claims that his conviction must be reversed because he was not expressly advised of his constitutional right to a jury trial as required by the court rule. Because the defendant has failed to provide this Court with a transcript of all pretrial proceedings, we have no record to review this assignment of error and thus consider the issue abandoned on appeal. GCR 1963, 812.2; People v Sparks, 82 Mich App 44, 51-52; 266 NW2d 661 (1978). Defendant’s second argument regarding RCR 7, § 5 is that the rule violates the Equal Protection and Due Process Clauses of the constitution because it requires misdemeanor defendants in the Recorder’s Court to affirmatively request a jury trial whereas misdemeanor defendants elsewhere in the state have an automatic right to a trial by jury unless it is specifically waived. DCR 785.4(c).
RCR 7, § 5 states:
"Waiver of Rights. Every misdemeanor defendant shall be expressly advised of his right to retain counsel at his own expense; his right to make and file a written demand for jury trial; and that trial by jury is waived unless such written demand is made and filed before trial.”
Thus, under this court rule a misdemeanor defendant must be expressly advised that he has a right to a trial by jury and that he must request such in writing in order to preserve the right.
Defendant does not argue that he was denied his right to a trial by jury, indeed, at oral argument the defense counsel stated that he had advised the defendant of his right to a jury and that the defendant had knowingly waived his right. We conclude that the defendant was afforded the same panoply of rights which are afforded to other misdemeanor defendants in this state, and thus he was not denied equal protection of the law. We further note that the Detroit court system was reorganized effective September 1, 1981, and prosecution of minor offenses was transferred from the Recorder’s Court to the newly organized 36th District Court for the City of Detroit. The effect of this reorganization is that now all misdemeanor defendants prosecuted under state statutes will be treated in the same manner with respect to a waiver of trial by jury.
Defendant next argues that the trial court erred in allowing the prosecutor to question him regarding his relationship with the police and whether he had been subjected to any prison discipline. Defense counsel objected to both of these lines of questioning.
Defendant claims the prosecutor’s cross-examination of the defendant objectionably referred to possible prior bad acts of the defendant. Although we agree that the prosecutor’s line of questioning elicited references to prior altercations involving the defendant, we find no error for the following reasons. First, nothing in the testimony indicates that these altercations were prior bad acts of the defendant. As the defense counsel points out in his brief on appeal, there is no evidence that the defendant was the aggressor in these incidents. Thus, the testimony did not necessarily indicate evidence of prior bad acts committed by the defendant. Second, even if this testimony raised the inference that the defendant was involved in several fights and was probably the perpetrator of some of them, the defendant opened the door to this line of questioning by complaining that the police never paid any attention to him. The defendant initiated that claim, and the prosecutor had a right to challenge it. The only way to make such a challenge was to question the defendant concerning the circumstances in which he was involved with the police. Third, the trial court indicated in its decision on the defendant’s motion for a new trial that the references to the defendant’s past conduct had no bearing on the court’s final deter mination. Thus, we conclude that if the trial court erred in permitting this line of questioning, the error was harmless beyond a reasonable doubt.
Defendant also objected to the line of questioning concerning whether he had been disciplined while in prison. The prosecutor withdrew the offensive question after a timely objection was raised. Since the defendant did not answer the question, no inadmissible evidence was received. A prosecutorial question itself is not evidence. Accordingly, we find this complaint to be without merit.
Lastly, the defendant argues that the trial court erred by failing to state factual findings which would support its verdict. As the defendant points out, a judge who sits in a criminal case without a jury is obligated to articulate the reasons for his verdict and his findings of fact. Findings of fact in a non-jury case reveal the law applied by the factfinder and facilitate efficient appellate review. People v Jackson, 390 Mich 621, 627-628; 212 NW2d 918 (1973); People v Bruce Ramsey, 89 Mich App 468, 473-477; 280 NW2d 565 (1979). The normal procedure is to remand a case for a further finding of fact if this Court concludes the trial court’s initial factual findings are inadequate for appellate review.
The issues in this case were whether the complainant had been struck with a stick and who was the aggressor in the fray. Since the trial court convicted the defendant of assault and battery, the court obviously found as a matter of fact that the defendant was the aggressor and as a matter of law that the defense of self-defense was unavailable to him. There were no complex factual or legal issues involved in this case, and, thus, we find the judge’s findings of fact legally sufficient for our review. We find no error.
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N. J. Kaufman, J.
On May 4, 1981, the Macomb County Circuit Court rendered a written opinion denying plaintiff’s action for partition. Plaintiff appeals from this order as of right.
During their marriage plaintiff, Lucy Butler, and defendant, Thomas F. Butler, acquired two parcels of land: a marital home in St. Clair Shores, Macomb County, and a small parcel of unimproved realty in St. Clair County.
On July 22, 1977, plaintiff and defendant conveyed both parcels to themselves and their three sons with the following language: "Thomas F. Butler, and Lucy Butler, his wife, and Thomas M. Butler, Timothy John Butler, and Michael Anthony Butler, all single men, not as tenants in common, but as joint tenants with rights of survivorship”. Both deeds were subsequently recorded on August 2, 1977, in the Macomb County Register of Deeds office. On March 17, 1980, a judgment of divorce was entered dissolving plaintiff’s and defendant’s marriage. The trial court’s opinion in the divorce action stated that the parties’ conveyances to themselves and their three sons, as joint tenants with rights of survivorship, precluded the court from distributing the real estate between the parties.
Following the divorce, the two adult sons reconveyed whatever interests they had acquired back to their parents, "Thomas F. Butler, a single man, and Lucy Butler, his former wife, as tenants in common, and not as joint tenants”. A conservator was authorized to reconvey the minor son’s interest back to his parents in a deed utilizing the identical language.
On June 19, 1980, plaintiff filed a partition action in Macomb County Circuit Court requesting that the two parcels be partitioned in accordance with the parties’ interests. In an opinion dated April 16, 1982, the trial court denied plaintiff’s request for partition on the grounds that the deeds of reconveyance created in the grantees a joint tenancy with rights of survivorship which could not be partitioned.
An established line of Michigan cases has held that the addition of the words "with a right of survivorship” to a deed or other instrument creating a joint tenancy creates not a mere joint tenancy, but an interest known as a "joint tenancy with rights of survivorship”. The Michigan Supreme Court has held that when the express words of survivorship are used in a conveyance, the parties create a joint life estate in all of the grantees followed by a contingent remainder in fee to the survivor. Jones v Snyder, 218 Mich 446, 449; 188 NW 505 (1922); Beaton v LaFord, 79 Mich App 373, 376; 261 NW2d 327 (1977). This right of survivorship cannot be defeated by the voluntary act of only one of the life tenants. For this reason one cotenant in a joint tenancy with rights of survivorship is not entitled to have partition over the objection of another cotenant.
If the July 22, 1977, deeds conveyed to the plaintiff and defendant a joint tenancy with rights of survivorship, the plaintiff’s request for partition must be denied. Plaintiff, however, argues that, while the deeds created a joint tenancy with rights of survivorship in the three sons, the interest created in the plaintiff and defendant was a ten ancy by the entirety. Under MCL 552.102; MSA 25.132, upon divorce, every husband and wife holding real estate as tenants by the entireties become tenants in common and are entitled to bring an action for partition. Thus, if the interests created in the parties by the July 22, 1977, deeds are construed as a tenancy by the entirety, the land is subject to partition.
The relevant language of the deeds is as follows: "Thomas F. Butler, and Lucy Butler, his wife, and Thomas M. Butler, Timothy John Butler, and Michael Anthony Butler, all single men, not as tenants in common, but as joint tenants with rights of survivorship”.
At common law, estates creating a plurality of tenancies were known as joint estates. Where a conveyance of real property was made to a husband and wife and a third person, the husband and wife were regarded as one person and they therefore took but one moiety as tenants by the entirety while the third person took his share as a tenant in common. This principle was explained by Tiffany in his work on real property:
"This tenancy [tenancy by the entirety] may be created even when the husband and wife are not the only grantees in the conveyance or beneficiaries of the devise, as when it is to a man and wife and another person, in which case the husband and wife would, prima facie, take a one-half interest only, which they would hold by entireties, while the third person would take the other half; and a like rule, that the husband and wife together take but one share, would apply, whatever the number of cotenants.” 2 Tiffany, Law of Real Property (3d ed), § 431, p 222.
Thus, in the present case, in the absence of any qualifying language, the parties to this lawsuit would have received a one-quarter interest in the property as tenants by the entirety as between themselves, and the three sons each would have received a one-quarter interest as tenants in common.
Under the common law an estate to husband and wife will ordinarily be held to create a tenancy by the entirety absent an intention to create a different estate. The existence of a tenancy by the entirety, therefore,. becomes a question of intention, modified by the presumption that in the absence of an expression of a contrary intention the grantor will be held to have intended to create a tenancy by the entirety. 2 Tiffany, Law of Real Property (3d ed), § 431, p 221; 161 ALR 457.
In Hoyt v Winstanley, 221 Mich 515; 191 NW 213 (1922), the Michigan Supreme Court, noting that the common law remains the law of Michigan, stated: "In this State, where the common law is unchanged by statute, a conveyance to husband and wife conveys an estate in entirety, but may create one in joint tenancy or in common, if explicitly so stated in the deed”. Hoyt, supra, p 518. The Court further stated that, to create an estate other than a tenancy by the entirety in a conveyance to a husband and wife, "the words must be sufficiently clear to negative the common law presumption that an estate by the entirety was intended”. Hoyt, supra, p 519. It is necessary, therefore, to analyze whether or not the qualifying terms "not as joint tenants in common, but as joint tenants with rights of survivorship” were sufficiently clear to negate the common-law presumption that an estate by the entirety was created in the parties by the July 22, 1977, deeds.
In Hoyt, supra, a conveyance was made to "Jasper Winstanley and Elizabeth J. Winstanley, his wife as joint tenants”. The Court held that the words "as joint tenants” were of themselves insufficient to indicate that an estate in joint tenancy was intended to be conveyed. The Court reasoned as follows:
"The explanatory words, 'as joint tenants,’ would of themselves be sufficient to indicate that an estate in joint tenancy was intended to be conveyed were it not for the fact that an estate by the entirety is a species of joint tenancy and is commonly included in that class. We have held that a grant to a husband and wife jointly conveyed an estate in entirety. The same word 'jointly’ used in a conveyance to grantees not husband and wife conveys an estate in joint tenancy. So, too, the words 'joint tenants,’ when coupled with 'husband and wife,’ do not bear the ordinary meaning, for an estate by the entirety is a joint tenancy. It is an estate in joint tenancy plus the unity of the marital relation. At common law and in our statutes, estates by the entirety are regarded as modified form of joint tenancy.
"In view of the fact that estates by entirety are a modified form of joint tenancy, that the terms are sometimes used interchangeably, and that our statute treats them as a species of joint tenancy, it is my judgment that the words 'as joint tenants,’ coupled with husband and wife in a conveyance to husband and wife, are not sufficient to indicate that an estate in joint tenancy was intended to be conveyed.” Hoyt, supra, pp 518-519.
In Heatter v Lucas, 367 Pa 296; 80 A2d 749 (1951), a deed conveyed land to "Francis Lucas, a single man, and Joseph Lucas and Matilda Lucas his wife”. Francis was the son of Joseph and Matilda. The Pennsylvania Supreme Court, holding that the deed created in Joseph and Matilda a tenancy by the entirety, reasoned as follows:
"In the instant case the two grantees are in fact husband and wife and the designation 'his wife’ sufficiently imports an intention that they shall take as such. Further the conjunction 'and’, first used, is unnecessary if the parties were intended to take undivided one-third parts; the use of the word 'and’ separated the grantees into two units (1) Francis and (2) Joseph and Matilda. The same construction was referred to in Johnson v Hart [6 Watt & Serg 319 (Pa, 1843)]. Finally, the designation of Francis Lucas as 'a single man’ fortified the conclusion that the deed had specific reference to the marital status of Joseph and Matilda Lucas; that they only took a one-half interest as tenants by the entireties.” Heatter, supra, p 302. (Emphasis in original.)
In the present case, the plaintiff and defendant were husband and wife when the deeds were created. As in Heatter, supra, the deeds used the designation 'his wife’ in referring to plaintiff. Such designation indicates an intent to take as tenants by the entireties. Furthermore, the use of the conjunction 'and’ after the reference to plaintiff and defendant, but prior to the reference to the sons, was unnecessary unless the grantors intended to convey a different estate to the husband and wife than to the sons. Finally, the reference to the sons as single men also supports a conclusion that the qualifying terms only referred to the sons.
The trial court’s order denying partition stated:
"This matter having come on to be heard on plaintiff Lucy Butler’s complaint for partition, and the court being duly advised in the premises, the court finds the following:
"a) That on July 22, 1977, the plaintiff and the defendant conveyed two parcels of realty to themselves and to their three sons, not as tenants in common, but as joint tenants with rights of survivorship.
"b) That the language of the deed is clear and unambiguous and evidences an intent on the part of the grantors to create a joint tenancy with full rights of survivorship and not simply a joint tenancy or a tenancy by the entireties.
"c) That the parties have placed their real estate beyond the adjudication of this court.
"It is therefore ordered that the plaintiff, Lucy Butler’s action for partition be, and the same is hereby denied.”
We cannot agree with the trial court’s conclusion and therefore reverse. The original deeds to the properties clearly show that the property originally was held by entireties. We agree with the trial judge that if the children were involved in the suit the court would be estopped from granting partition. But here the dispute is between former husband and wife. The deeds of the children who reconveyed to their father and former wife, the children’s mother, were for the purpose of conveying whatever interests they had acquired back to their parents. This intention is evidenced in the stipulated facts, and should be enforced by the Court. We also agree that the trial judge was correct that he could not do anything with the property at the time of the divorce due to the fact that the children were still named on the property with rights of survivorship. Ballard v Wilson, 364 Mich 479; 110 NW2d 751 (1961). The reconveyances solved this problem. Tenants in common are entitled to partition. The Legislature enacted MCL 552.102; MSA 25.132 with the express intention of permitting divorced couples to divide their property. The trial court’s ruling results in a situation contrary to the legislative intent.
Reversed and remanded. | [
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Per Curiam.
Defendant appeals, by leave granted, from the order of the Monroe County Circuit Court changing custody of defendant’s three-year-old daughter from the defendant mother to the child’s paternal grandparents.
In April, 1979, plaintiff father filed for divorce. On June 5, 1979, the defendant was given temporary custody of the parties’ only child. A petition for intervention filed by the paternal grandparents was thereafter granted. A contested custody hearing was held before Judge William J. Weipert, Jr., on October 23, 1980, and decision was reserved. A judgment of divorce was entered on December 12, 1980, with the issues of custody and support reserved. In March, 1981, Judge Weipert issued a written decision which addressed the statutory factors of the Child Custody Act of 1970, MCL 722.23; MSA 25.312(3), and which granted custody to the mother. The decision also ordered a Friend of the Court review to be held in six months.
On July 29, 1981, Judge Weipert refused to consider plaintiffs motion for a change of custody and for a review hearing on the ground that the six months had not yet run. The intervening grandparents then hired a new attorney. On August 5, 1981, the case was reassigned to Judge Kelley as the grandparents’ new attorney was related to Judge Weipert. Plaintiff then noticed for hearing the motion for a change of custody which Judge Weipert had previously refused to consider. On August 19, 1981, Judge Kelley heard plaintiff’s motion for a change of custody.
At the conclusion of the proofs, Judge Kelley stated:
"Now whatever was decided by the judge to whom this matter was previously assigned remains decided
"However the issue here, by agreement of the parties, has been limited to factor F of the Child Custody Act of 1970; that is the moral fitness of the competing parties.”
Judge Kelley then went on to find that since the last determination of custody, the defendant had been living with her boyfriend, with the child present, without the benefit of marriage. Judge Kelley then ruled that both the mother and father were morally unfit to have custody of the child and, therefore, the court ordered that custody of the child be placed with the paternal grandparents. On appeal, defendant raises several issues for our consideration.
At the outset, we reject appellant’s contention that Judge Kelley erred in hearing the motion for a change of custody only three weeks after the original trial judge had ruled that he would not consider the motion for six months. It is well established that child custody remains subject to modification at any time by the circuit court in the best interests of the child. Hentz v Hentz, 371 Mich 335; 123 NW2d 757 (1963); Puzzuoli v Puzzuoli, 3 Mich App 594; 143 NW2d 162 (1966). Judge Kelley was properly acting within his dis cretion in granting a hearing on plaintiffs motion for a change of custody.
We must agree, however, with appellant’s contention that Judge Kelley erred in ordering a change of custody without making findings of fact as required by law.
When deciding a custody matter, the trial court must evaluate each of the factors contained in the Child Custody Act of 1970, MCL 722.23; MSA 25.312(3), and state a conclusion on each, thereby determining the best interests of the child. Speers v Speers, 108 Mich App 543; 310 NW2d 455 (1981). A failure to make such specific findings is reversible error. Currey v Currey, 109 Mich App 111; 310 NW2d 913 (1981).
In the present case, Judge Kelley did not make specific findings of fact on each of the factors. In fact, the only specific finding of fact made by Judge Kelley was with regard to factor F — moral fitness. Instead, he chose to rely upon the factual findings previously made by Judge Weipert. Judge Kelley did not refer to the specific findings made by Judge Weipert and it is unknown whether he even read Judge Weipert’s written opinion. We hold that, notwithstanding the parties’ stipulation, Judge Kelley erred in ordering a change in custody after conducting a hearing limited to only one of the statutory factors. Such a limited hearing puts too much emphasis on one factor and inclines the court to decide the best interests of the child without considering the entire situation. This is particularly true where, as in the present case, the court merely states that the previous decision by the original judge will stand, without indicating in any way that the reviewing court has read or considered the previous decision.
Furthermore, Judge Kelley committed reversible error by failing to consider the following statutory prescription:
"When the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.” MCL 722.25; MSA 25.312(5).
In any event, we are compelled to reverse Judge Kelley’s decision as it was unsupported by clear and convincing evidence. MCL 722.27(c); MSA 25.312(7)(c) provides in pertinent part:
"The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”
In this case, it is clear that the established custodial environment of the child was with the mother.
Judge Kelley’s ruling that the mother was morally unfit appears to have been based on the sole fact that she was living with a man, to whom she is now married, without the benefit of marriage. Standing alone, we feel that this is not enough to constitute immorality as envisioned by the statute. This Court has previously held that a mother’s acts of adultery do not necessarily preclude her from having custody of her children. Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974). It should be noted that in Feldman, the Court’s finding that the mother was not morally unfit was based on a record disclosing immoral acts beyond any acts that the present defendant may have been accused of. In Zawisa v Zawisa, 61 Mich App 1; 232 NW2d 275 (1975), this Court, in remanding a child custody dispute to the trial court for specific findings of fact, indicated that the mother’s unfaithfulness would not necessarily preclude her from being the custodial parent.
Regardless of the significance one chooses to attach to the fact that defendant lived with her present husband out of wedlock, it must be recognized that morality is but one of 11 factors which the court should have considered. Furthermore, it is interesting to note that although the plaintiff father was accused of similar immoral acts, Judge Kelley failed to consider what impact those alleged immoral acts would have upon the child. We conclude that Judge Kelley’s finding that a change of custody would be in the best interests of the child was unsupported by clear and convincing evidence.
Finally, in determining the morality of defendant, Judge Kelley should not have admitted into evidence the testimony of an employee of the Friend of the Court regarding his conversation with the three-year-old child. This testimony was clearly inadmissible hearsay. MRE 801(c).
We reverse Judge Kelley’s order and reinstate Judge Weipert’s previous order vesting custody in the defendant.
Costs to defendant-appellant. | [
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Per Curiam:.
The plaintiff, Adamo Equipment Rental Company, appeals an order of accelerated judgment which the Wayne County Circuit Court entered on July 9, 1980, in favor of the defendantappellee, the Fireman’s Insurance Company of Newark, New Jersey.
One of the defendants, Mack Development Com pany, Inc., was awarded a construction contract in the gross sum of $1,430,000 by the City of Inkster. The defendant-appellee, The Fireman’s Insurance Company of Newark, executed a performance bond and a payment bond in the full amount of the contract. The general contractor, Mack Development Company, Inc., awarded the plaintiff, Adamo Equipment Rental Company, a subcontract worth $55,000 gross.
The last payment Mack Development Company made to plaintiff, Adamo, was on November 19, 1976.
Defendant Mack Development Company defaulted while the contract was incomplete and was replaced by a new contractor chosen by defendant Fireman’s Insurance. This event occurred on August 9, 1977. The last payment made to defendant Mack Development Company was also made on the 9th day of August, 1977.
Plaintiff filed suit to recover the unpaid portion of its subcontract with defendant Mack on February 13, 1979.
The final payment on the construction contract was made by the City of Inkster on January 31, 1980.
Defendant Mack performed on the contract a period of 15 months; the substitute contractor performed for a period of 32 months.
Defendant Fireman’s Insurance moved for an accelerated judgment on the basis that the statute of limitations barred plaintiffs claim. Defendant Fireman’s contention was based on MCL 129.209; MSA 5.2321(9), which reads, in part, as follows:
"* * * No action shall be commenced after the expiration of one year from the date on which final payment was made to the principal contractor.”
Defendant Fireman’s contends that Mack Development was the principal contractor within the meaning of the statute and that the last payment under the contract to Mack was made on August 9, 1977. Ergo, any claim for materials or labor furnished to the project which was made subsequent to August 8, 1978, is barred by the cited statute.
The trial court granted defendant’s motion for accelerated judgment and plaintiff appeals as a matter of right.
The long-standing mechanics’ lien law does not apply to public buildings. Ford v State Bd of Education, 166 Mich 658; 132 NW 467 (1911). Contractors and materialmen on public buildings were denied the security afforded when the identical work or materials were provided to the private sector. To fill this interstice in the mechanics’ lien law, the Legislature adopted 1963 PA 213, the statute now under consideration.
The purpose and intent of Act 213 is to safeguard and protect contractors and materialmen in the public sector. The statute is remedial in nature and, therefore, should be liberally construed. Wallich Lumber Co v Golds, 375 Mich 323; 134 NW2d 722 (1965).
The disposition of this case depends on the definition of the terms "principal contractor” and "final payment”. No definition of these terms appear in the act. The Court has not found, nor has it been cited to, any Michigan authority defining such terms. To this extent, the case is one of first impression in this state.
Defendant-appellee would have the Court read "principal contractor” synonymously with "first contractor” and the term "final payment” as "last payment”. We do not agree.
A fair reading of the act leaves us with the conviction that the term "principal contractor”, as here used by the Legislature, means the contractor who has the primary responsibility for performing the terms of the contract. The term was used by the Legislature to distinguish between rights and duties of the primary contractor and the rights and duties of the secondary contractors, i.e., materialmen and subcontractors.
Defendant Fireman’s contends that the last payment to defendant Mack constituted the "final payment” as that term was used in the statute.
We defined the term "final payment” to mean the last contractual payment made to the principal contractor, whether that be the first contractor or a person substituted for the first contractor.
In this case, suit was commenced on February 13, 1979; the final payment on the contract was not made until January 31, 1980. Plaintiffs suit was timely filed.
Reversed and remanded for trial on the merits. Costs to plaintiff.
MCL 129.207; MSA 5.2321(7) requires that all claims be sued on within 90 days from the date the last labor is performed or the last material is furnished. This would seem to indicate that plaintiff performed its last work or furnished its last material no earlier than November, 1978, some 15 months after Mack had received the last payment and had been replaced. Our decision, however, is not based on this supposition. | [
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Per Curiam:.
Defendant, upon his plea of guilty, was convicted of breaking prison, MCL 750.193; MSA 28.390. He was sentenced to a prison term of from one to five years. He appeals by right.
We reject defendant’s claim that his waiver of his right to the assistance of counsel was involuntary. The trial judge fully complied with the applicable court rule, GCR 1963, 785.4. Our review of the transcripts of the plea-taking and sentencing reveals a proper concern on the part of the trial judge for defendant’s right to counsel. In several instances, the trial judge went beyond the requirements of the court rule in explaining to defendant the choices presented to him.
The guidelines for determining whether a defendant should be allowed to dismiss his counsel and proceed to trial pro se are not applicable here. As our Supreme Court stated in People v Anderson, 398 Mich 361; 247 NW2d 857 (1976), the existence of a knowing and intelligent waiver must depend in each case upon its particular facts and circumstances, including the background, experience and conduct of the accused. In the present case, defendant was a man with substantial experience in the criminal justice system. Our review of defendant’s statements to the trial court indicates that he possessed sufficient intelligence and familiarity with his rights to voluntarily waive his right to counsel. Furthermore, we think that compliance with GCR 1963, 785.4, will, in all but the most unusual cases, ensure that a defendant’s waiver of the right to counsel at the plea-taking proceeding is voluntary and informed.
We also reject defendant’s claim that his waiver of counsel was involuntary because he stated, at the plea-taking proceeding, that he did not wish to have counsel appointed for him so long as no supplemental information was filed against him. On appeal, defendant claims that that statement shows that he waived his right to counsel in exchange for the prosecutor’s failure to file a supplemental information. Nothing in the record supports that claim and it is affirmatively refuted by statements made by defendant and by the prosecutor. Defendant clearly stated that he waived his right to counsel, subject to the possibility that he would change his mind if the prosecutor filed a supplemental information. On the record, the prosecutor and judge did nothing to elicit that statement. Defendant’s statement was the result of his own informed decision, not of any threats by the prosecutor. Defendant was not coerced into waiving his right to counsel.
Defendant claims that the judge erred by failing to inform him that the statute required that his sentence be served consecutively to the sentence that he was serving at the time of his escape. We disagree for the reasons stated in People v Hollie, 112 Mich App 370; 315 NW2d 549 (1981).
Finally, we agree with defendant that he was denied his right of allocution even though the judge asked defendant if he had anything to say after sentence was imposed. We are compelled by the Supreme Court’s authority to hold that failure to comply with GCR 1963, 785.8(2), requires resentencing. People v Berry, 409 Mich 774, 781; 298 NW2d 434 (1980). In Berry, the Supreme Court stated:
"The rule requires strict compliance and should be understood in all cases to require the trial court to inquire specifically of the defendant separately whether he or she wishes to address the court before the sentence is imposed. Ordinarily the inquiry should come immediately before the sentence is pronounced and after the trial court has made such remarks as it deems appropriate concerning the offense involved, the presentence report, the defendant’s personal history, the needs of the community, and any other subject.
"In the cases before us, it is evident from the records that the defendants were not separately and individu ally given a reasonable opportunity to address the court. Thus the defendants must be resentenced.”
Defendant was not allowed to address the court on the subject of sentencing before his sentence was imposed.
In order to cure an omission of the defendant’s opportunity for allocution, the defendant must specifically be informed that his comments are sought in order to assist the judge ifi passing sentence. Where, as here, the defendant is merely asked if he has anything to say after sentence is imposed and he says nothing, resentencing is required. The reviewing court cannot tell whether the defendant did not wish to exercise his right of allocution or he thought the opportunity was meaningless because his sentence had already been imposed.
Defendant’s conviction is affirmed; remanded for resentencing. | [
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MacKenzie, J.
Plaintiff Roy Phillip Edson, an Ionia County deputy sheriff, was discharged on March 13, 1980. Pursuant to the collective-bargaining agreement between plaintiff union and defendants, Edson commenced a grievance proceeding and the matter went to arbitration. In an opinion and award dated August 19, 1980, the arbitrator cited a provision of the collective-bargaining agreement which required "just cause” for discipline or discharge of a deputy and concluded that the sheriff had failed to meet his burden of proving "just cause” for discharging Edson. The arbitrator ordered that Edson be reinstated with full back pay and benefits.
The sheriff declined to obey the arbitrator, and plaintiffs brought an action in circuit court to enforce the award. The circuit court held that defendants were not required to reinstate Edson with law enforcement powers but otherwise ordered that Edson be reinstated with full back pay and benefits. Defendants appeal by right, while plaintiffs cross appeal.
I
Plaintiffs argue that defendants waived the right to object to the authority of the arbitrator to render the award at issue here by failing to raise such án objection before the matter was submitted to arbitration. Plaintiffs rely on American Motorists Ins Co v Llanes, 396 Mich 113; 240 NW2d 203 (1976) Detroit Demolition Corp v Burroughs Corp, 45 Mich App 72; 205 NW2d 856 (1973), and Anno: Participation in Arbitrataion Proceedings as Waiver of Objections to Arbitrability, 33 ALR3d 1242. However, those authorities are distinguishable here because they involved disputes as to whether a particular question was arbitrable under an arbitration agreement or the arbitration clause of a contract while here defendants argue that they had no power to agree to arbitrate the questions presented to the arbitrator. For an example of a similar distinction, see Arrow Overall Supply Co v Peloquin Enterprises, 414 Mich 95; 323 NW2d 1 (1982). In that case, the Court held that defendant had not waived a defense based on the absence of a valid agreement to arbitrate by failing to raise the question during arbitration. Defendant had not participated in the arbitration proceedings and plaintiff had not compelled defendant to participate pursuant to GCR 1963, 769.2.
Here, in contrast to the Arrow Overall Supply Co case, defendants participated in the arbitration proceedings. However, if, as defendants contend, they had no power to agree to arbitrate these questions, we cannot see how they had the power to waive the right to object to the arbitrability of these questions by participating in the proceedings. A provision of a collective-bargaining agreement which embodies an illegal subject of bargaining is unenforceable. Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 54-55, fn 6; 214 NW2d 803 (1974). We would be circumventing this rule if we were to find a waiver under the circumstances presented here.
II
MCL 51.70; MSA 5.863 provides in part:
"Each sheriff may appoint 1 or more deputy sheriffs at the sheriff’s pleasure, and may revoke those appointments at any time. Persons may also be deputed by a sheriff, by an instrument in writing, to do particular acts, who shall be known as special deputies and each sheriff may revoke those appointments at any time.”
MCL 423.215; MSA 17.455(15) provides:
"A public employer shall bargain collectively with the representatives of its employees as defined in sec tion 11 and is authorized to make and enter into collective bargaining agreements with such representatives. For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract, ordinance or resolution incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.”
Defendants argue that the two statutes are in conflict and that MCL 51.70; MSA 5.863 ought to prevail as the more specific of the two. Alternatively, defendants argue that, while there is no positive repugnancy between the two statutes, each statute must be construed so as to give effect to both, and thus the sheriffs power to appoint deputies and revoke deputies’ appointments is not a term or condition of employment about which the sheriff may collectively bargain. However, the Supreme Court has held on several occasions that the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., is the dominant law regulating public employment relations and was intended by the Legislature to prevail over conflicting statutes. Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 629-630; 227 NW2d 736 (1975); Central Michigan University Faculty Ass’n v Central Michigan University, 404 Mich 268, 279-281; 273 NW2d 21 (1978); Local 1383, International Ass’n of Firefighters, AFL-CIO v City of Warren, 411 Mich 642, 655-662; 311 NW2d 702 (1981). Defendants rely on Council No 23, Local 1905, American Federation of State, County & Municipal Employees v Recorder’s Court Judges, 399 Mich 1; 248 NW2d 220 (1976). That case is not binding precedent since no majority agreed on a ground for decision. See, for example, People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973), and the cases discussed therein. Moreover, in Local 1383, supra, 655, fn 4, the Court suggested that Council No 23 reflects a special rule applicable only to the judiciary.
Ill
In Regents of University of Michigan v Employment Relations Comm, 389 Mich 96, 108-109; 204 NW2d 218 (1973), the Court stated:
"We hold that interns, residents and post-doctoral fellows may be employees and have rights to organize under the provisions of PERA without infringing on the constitutional autonomy of the Board of Regents. However, as the Court of Appeals pointed out in Regents of University of Michigan v Labor Mediation Board, 18 Mich App 485, 490-491 [171 NW2d 477] (1969):'
" 'While recognizing that the plaintiff is a public employer and the employees in question are public employees, we also recognize that this plaintiff, because of the provisions of Const 1963, art 8, § 5, is a unique public employer. Its powers, duties and responsibilities are derived from the constitution as distinguished from other public employers whose authority is derivative from enactments of the legislature.’
"Because of the unique nature of the University of Michigan, above referred to, the scope of bargaining by the Association may be limited if the subject matter falls clearly within the educational sphere. Some conditions of employment may not be subject to collective bargaining because those particular facets of employment would interfere with the autonomy of the Regents. For example, the Association clearly can bargain with the Regents on the salary that their members receive since it is not within the educational sphere. While normally employees can bargain to discontinue a certain aspect of a particular job, the Association does not have the same latitude as other public employees. For example, interns could not negotiate working in the pathology department because they found such work distasteful. If the administrators of medical schools felt that a certain number of hours devoted to pathology was necessary to the education of the intern, our Court would not interfere since this does fall within the autonomy of the Regents under Article 8, § 5. Numerous other issues may arise which fall between these two extremes and they will have to be decided on a case by case basis.”
See also CMU Faculty Ass’n, supra, pp 281-282.
In Nat'l Union of Police Officers Local 502-M, AFL-CIO v Wayne County Bd of Comm’rs, 93 Mich App 76; 286 NW2d 242 (1979), the Court considered whether a sheriff has a sphere of exclusive powers analogous to those discussed in the U of M Regents and CMU Faculty cases. The office of sheriff is a constitutional office; see Const 1963, art 7, § 4, which provides in part:
"There shall be elected for four-year terms in each organized county a sheriff * * * whose duties and powers shall be provided by law.”
The foregoing provision seems to leave definition of the duties and powers of a sheriff for the Legislature; however, it has been held that the office of sheriff has a known legal character and that the Legislature may not vary the duties and powers of the sheriff in a way which changes the legal character of the office. Allor v Wayne County Bd of Auditors, 43 Mich 76, 102-103; 4 NW 492 (1880); Brownstown Twp v Wayne County, 68 Mich App 244; 242 NW2d 538 (1976). The theory behind these cases is that if the known legal character of the office is altered, the official can no longer be characterized as a "sheriff’.
The conclusion reached in Nat'l Union of Police Officers, supra, pp 89-90, was as follows:
"[W]e posit — with some trepidation — the following principles which we deem applicable to the case before us: First, the sheriffs power to hire, fire and discipline is not absolute. Rather, his discretion is limited by PERA. * * * Second, all terms and conditions of employment are subject to collective bargaining and to any agreement resulting therefrom, unless that bargaining or agreement infringes upon matters which are placed within the exclusive power of the sheriff by the constitution. * * * Third, although the sheriff’s power to hire, fire and discipline may be limited by the Legislature, the matter of which of his deputies shall be delegated the powers of law enforcement entrusted to him by the constitution is a matter exclusively within his discretion and inherent in the nature of his office, and may neither be infringed upon by the Legislature nor delegated to a third party * * *.
"We therefore conclude that the legislative delegation of the executive police power to the sheriff may not be limited by a collective bargaining agreement as authorized by PERA, but remains vested exclusively in the sheriff. This being so, the arbitrator exceeded his authority under the contract in ordering the sheriff to restore plaintiff McKeon’s law enforcement powers before the sheriff, in the exercise of his discretion, was prepared to do so.” (Citations omitted.)
The circuit court here followed Nat'l Union of Police Officers by ordering that plaintiff Edson be reinstated with full back pay and benefits but holding that defendants were not required to reinstate Edson with law enforcement powers. None of the parties is satisfied with this result and each side attacks it from opposite directions. However, Nat'l Union of Police Officers represents a delicate balancing of the constitutional roles of the sheriff and the Legislature and no convincing reason to disturb that balance has been presented here.
IV
Defendants argue that the arbitrator’s award was contrary to public policy and that the circuit court should therefore have declined to enforce it. In Ferndale Education Ass’n v School Dist for City of Ferndale No 1, 67 Mich App 637, 642-643; 242 NW2d 478 (1976), the Court explained the scope of judicial review of an arbitration award:
"In the Steelworkers trilogy [United Steelworkers of America v American Mfg Co, 363 US 564; 80 S Ct 1343; 4 L Ed 2d 1403 (1960); United Steelworkers of America v Warner & Gulf Nav Co, 363 US 574; 80 S Ct 1347; 4 L Ed 2d 1409 (1960); United Steelworkers of America v Enterprise Wheel & Car Corp, 363 US 593; 80 S Ct 1358; 4 L Ed 2d 1424 (I960)], the United States Supreme Court held that the merits of either the grievance or the arbitration award are irrelevant when a Federal court is asked to enforce an arbitration agreement or award thereunder. Judicial review is limited to whether the award 'draws its essence’ from the contract, whether the award was within the authority conferred upon the arbitrator by the collective bargaining agreement. Once substantive arbitrability is determined (as it was in the court below) judicial review effectively ceases. The fact that an arbitrator’s interpretation of a contract is wrong is irrelevant.
"This position of limited review has been adopted by the Michigan Supreme Court. Frazier v Ford Motor Co, 364 Mich 648; 112 NW2d 80 (1961); Kaleva-Norman-Dickson School Dist No 6 v Kaleva-Norman-Dickson School Teachers Ass’n, 393 Mich 583; 227 NW2d 500 (1975). This Court follows the same policy. Chippewa Valley Schools v Hill, 62 Mich App 116; 233 NW2d 208 (1975).
"Naturally, there are certain exceptions to the rule of judicial deference to the decisions of the arbitrator once arbitrability has been established. See Frazier v Ford Motor Co, supra (Judge [sic] Souris, dissenting). None of these situations exist in this case.” (Footnote omitted.)
Here the arbitrator held that the sheriff had failed to meet his burden of proving "just cause” for discharging Edson. Defendants would have us review the evidence underlying the arbitrator’s decision, draw our own conclusions of fact and of law from that evidence and only then consider whether the arbitrator’s award violated public policy. In Ferndale Education Ass’n, supra, the Court noted that Justice Souris had cataloged exceptions to the rule of judicial deference to decisions of an arbitrator in his dissenting opinion in Frazier v Ford Motor Co, 364 Mich 648, 655-656; 112 NW2d 80 (1961). Justices Souris quoted Updegraff & McCoy, Arbitration of Labor Disputes (1946), p 126, in part as follows:
"Or if he requires a party to do or refrain from an act in violation of public policy, the award will not be enforced. For example, an award during World War II that required a company to pay double time for work on Sunday, in violation of Executive Order 9240, would have been unenforceable.
"But certain other grounds that would be sufficient in an appeal from a judgment would not be grounds for impeaching an award, for the reason that the contractual element is present in the award. Thus, the fact that the arbitrator made erroneous rulings during the hearing, or reached erroneous findings of fact from the evidence, is no ground for setting aside the award, because the parties have agreed that he should be the judge of the facts. Even his erroneous view of the law would be binding, for the parties have agreed to accept his view of the law.” (Footnote omitted.)
The foregoing demonstrates that it is an arbitrator’s award, rather than his findings of fact or conclusions of law, which must be contrary ■'to public policy before a court will refuse to enforce it.
Our decision has rendered moot plaintiffs’ argument concerning the propriety of staying the circuit court’s judgment pending appeal. The circuit judge correctly ordered that plaintiff Edson be reinstated with full back pay and benefits but without law enforcement powers.
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Per Curiam.
In an original mandamus action, plaintiff, Bernadine Oakley, requests this Court to require defendants, Michigan Department of Mental Health and C. Patrick Babcock, to provide her with statutory supplemental and fringe benefits for a work-related injury.
The record reflects that plaintiff, who was employed as an attendant nurse at the Plymouth Center for Human Development, sustained injuries when assaulted by a patient on March 13, 1979. Approximately two weeks later, the Department of Mental Health (hereinafter department) voluntarily started paying plaintiff workers’ compensation benefits in the amount of $134.67 per week and statutory supplemental benefits at the rate of $50 per week.
When plaintiffs workers’ compensation benefits were terminated on March 24, 1980, she filed a petition for a hearing with the Bureau of Workers’ Disability Compensation. On April 10, 1980, a hearing referee determined that plaintiff was psychiatrically disabled and ordered that defendant pay plaintiff workers’ compensation benefits until further order of the bureau. An appeal from this order by the State Accident Fund to the Workers’ Compensation Appeal Board is pending.
Shortly after the hearing referee’s decision, de fendant discontinued plaintiffs supplemental benefits, apparently on the basis that plaintiff was not physically disabled.
The statute which entitles an employee of the Department of Mental Health to supplemental benefits for injuries sustained as a result of an assault by a recipient of mental health services provides:
"A person employed by the department who is injured as a result of an assault by a recipient of mental health services shall receive his full wages by the department until workmen’s compensation benefits begin and then shall receive in addition to workmen’s compensation benefits a supplement from the department which together with the workmen’s compensation benefits shall equal but not exceed the weekly net wage of the employee at the time of the injury. This supplement shall only apply while the person is on the department’s payroll and is receiving workmen’s compensation benefits and shall include an employee who is currently receiving workmen’s compensation due to an injury covered by this section. Fringe benefits normally received by an employee shall be in effect during the time the employee receives the supplement provided by this section from the department.”
On March 3, 1981, plaintiff was terminated from her employment with the department. In an affidavit attached to defendant’s answer, the personnel director of the Plymouth Center for Human Development stated that a disabled employee who is the recipient of workers’ compensation benefits for 100 weeks is not retained on the department’s payroll unless it appears that the employee will soon return to work. _
In their answer to plaintiffs complaint for mandamus, defendants assert that supplemental benefits should not be awarded because (1) plaintiff failed to exhaust her available remedies under the collective-bargaining agreement, (2) plaintiff was removed from the department’s payroll in 1981, and (3) a May 28, 1981, Court of Claims decision that directed plaintiff to exhaust her contract remedies operates as a bar to the within action.
Since plaintiff was removed from the payroll of defendants in 1981, this mandamus action focuses on whether, under MCL 330.1113; MSA 14.800(113), she is entitled to the payment of supplemental benefits from May, 1980 (when defendants discontinued the payment of supplemental benefits), to March 3, 1981 (the date in which plaintiff was removed from defendants’ list of employees).
We find that defendants’ challenges to plaintiff’s statutory right to receive supplemental benefits are groundless. When seeking a benefit which is not awardable under the employment contract, such as a constitutional or statutory right, a public employee does not have to exhaust her grievance remedies under the collective-bargaining agreement. In the within matter, supplemental benefits are provided by statute, not by the employment agreement.
Defendants’ second defense concerns plaintiff’s current status as a nonemployee of the department. While the statute which provides supplemental benefits requires as one of two preconditions that the injured employee be a member of the department’s payroll, this does not preclude plaintiff from receiving the benefits for the period when she was on the payroll.
Defendants’ contention that plaintiff’s unsuccessful Court of Claims suit acts as a bar to the instant action is incorrect. In that case, the Court of Claims granted defendants’ motion for accelerated judgment on the basis that plaintiff had not exhausted her contract remedies. The doctrine of res judicata is inapplicable to actions that are terminated by the granting of accelerated judgments because an accelerated judgment motion does not test the merits of the claim; rather, it interposes a technical defense thereto, regardless of the merits of the case.
After reviewing defendants’ claim that the supplemental benefits statute is unconstitutional, we find the argument to be without merit. The statute, which operates as an amendment to the employment contract of every Department of Mental Health employee, furnishes a wage continuation plan in the event that an employee "is injured as a result of an assault by a recipient of mental health services”. In our view, the Legislature had a laudable, rational basis for enacting the statute.
Accordingly, plaintiff’s request for a writ of mandamus is hereby granted. Defendants are directed to furnish plaintiff supplemental benefits and normal fringe benefits for the period in which supplemental benefits were discontinued to the last date she was on defendants’ payroll._
MCL 600.4401(1); MSA 27A.4401G); GCR 1963, 714.1.
MCL 418.301; MSA 17.237(301).
MCL 330.1113; MSA 14.800(113).
MCL 418.201; MSA 17.237(201).
MCL 418.251; MSA 17.237(251). During the pendency of the appeal, plaintiff, pursuant to MCL 418.862; MSA 17.237(862), is receiving 70% of the $134.67 weekly compensation benefits awarded by the hearing referee.
MCL 330.1113; MSA 14.800(113).
In this action, plaintiff does not contest the propriety of her discharge from the department.
Caronis v City of Pontiac, 71 Mich App 573, 580; 248 NW2d 620 (1976), lv den 399 Mich 842 (1977); Barry v Flint Fire Dep’t, 44 Mich App 602, 606-607; 205 NW2d 627 (1973); Kewin v Melvindale-Northern Allen Park Bd of Ed, 65 Mich App 472, 478-479; 237 NW2d 514 (1975).
Court of Claims Docket No. 81-7524, decided May 28, 1981.
For a summary of the elements of the res judicata doctrine, see Ward v DAIIE, 115 Mich App 30, 37; 320 NW2d 280 (1982).
Goodrich v Moore, 8 Mich App 725, 728-729; 155 NW2d 247 (1967), lv den 380 Mich 764 (1968); San Joaquin County, California v Dewey, 105 Mich App 122, 131; 306 NW2d 418 (1981); Restatement Judgments, § 49, p 193. | [
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Per Curiam.
Plaintiffs are police officers employed by the Roseville Police Department. Their complaint, filed June 11, 1980, alleged certain irregularities in an examination administered by defendant as part of its evaluation of these officers for promotion to police sergeant. Defendant did not write this test but used a format developed by the International Personnel Management Association. Defendant has appealed as of right from a circuit court order enjoining the use of these test results.
Because of the absence of a complete record to determine the basis of defendant’s decision, the circuit court conducted a hearing to receive testimony from the parties. See Drouillard v Roseville, 9 Mich App 239; 156 NW2d 628 (1967). At the circuit court hearing, each party introduced an expert witness who testified regarding the validity of the examination and the ability of the exam to provide an adequate ranking of the officers who took the test. Prior test takers were also introduced to testify concerning irregularities in the examination including: giving of identical tests from year to year, resulting in some officers having answers to some of the 1980 test questions; problems with test books having been broken open; and confusion concerning the same identification number having been given to a number of persons taking the test.
The trial court issued its opinion on January 7, 1981, finding that defendant’s review procedure, allowing exam takers to review their exams and take notes concerning these exams, destroyed the credibility of subsequent testing when these same exams were used. The trial court pointed out that the national average for officers scoring above 125 on the exam was .6% as compared with the Rose-ville average of 21% scoring above 125. Accordingly, the trial court found that the test could not be considered competitive and, therefore, violated the statutory requirements of MCL 38.507; MSA 5.3357.
This Court set forth the standard of review for decisions of a municipal civil service commission in Core v Traverse City, 89 Mich App 492, 498; 280 NW2d 569 (1979), as follows:
“The nature of a court’s review of the decision of a municipal civil service commission is to determine whether the decision is supported by competent, material and substantial evidence. The court is not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal. Hunn v Madison Heights, 60 Mich App 326; 230 NW2d 414 (1975); Werner v Macomb County Civil Service Comm, 77 Mich App 533; 258 NW2d 549 (1977).”
A review of the evidence and the limited nature of the review available to the trial court leaves this Court with the impression that the circuit court improperly enjoined defendant from relying upon the 1980 exam scores. While defendant’s procedure regarding review and administration of the exam is suspect, there is sufficient support on the record to conclude that the exam was competitive within the meaning of the statute. MCL 38.512; MSA 5.3362 provides only that the exam shall be practical in its character "and include such inquiries, as will fairly and fully test the comparative merit and fitness of the persons examined to discharge the duties of the employment sought by them”. Defendant’s expert witness, Lawrence Roy Binder, testified that, while the exam would not be valid to determine the ranking of Roseville officers against a national sample, it would be valid in ranking individual officers within the Roseville group. The purpose of a selection device such as the civil service examination is to identify individual differences among people who have taken the test. To properly determine the validity of the exam, the year-to-year scores and the relative positions of the persons within the testing group must be considered. In Roseville, the rankings of the officers correlated fairly consistently when the 1975, 1977 and 1980 exams were compared. This factor indicated that the 1980 exam would be a reliable measure of an officer’s ability in a competitive exam situation.
The trial court was not in a position to weigh the internal procedures of defendant. Defendant’s finding that the test was competitive and its resolution of all improprieties involved may be legitimately inferred from the testimony given and the record of its minutes. Core, supra, 498, citing Hunn v Madison Heights, 60 Mich App 326; 230 NW2d 414 (1975); Werner v Macomb County Civil Service Comm, 77 Mich App 533; 258 NW2d 549 (1977), lv den 402 Mich 836 (1977).
The circuit court order enjoining defendants from using these test results is vacated and the case remanded to the circuit court for dismissal of plaintiffs’ complaint with prejudice. | [
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R. M. Maher, P.J.
Originally charged with second-degree murder, MCL 750.317; MSA 28.549, defendant pled guilty to manslaughter, MCL 750.321; MSA 28.553, pursuant to his plea agreement. In exchange for defendant’s plea, the prosecutor had agreed to reduce the charge to manslaughter. The trial court then informed defendant that if he accepted the prosecutor’s offer it would sentence defendant to a maximum of 18 months incarceration. The trial court, however, had not read defendant’s presentence report before it offered defendant the year-and-a-half sentence. After reading it, the court apparently believed its original offer to be too generous and sentenced defendant to 5 to 15 years imprisonment. Reminded of its earlier agreement, the court allowed defendant to withdraw his plea. The defendant, however, declined to do so.
Defendant argues that he is entitled to specific performance of the sentence agreement. In People v Dixon, 103 Mich App 518; 303 NW2d 32 (1981), upon which defendant relies, a panel of this Court held that a defendent may specifically enforce a trial court’s sentence agreement. I disagree with Dixon and hold that the defendant is not entitled to specific performance of his sentence agreement with a trial court.
Two central policy concerns must be considered by a court deciding whether a defendant is entitled to specific performance of a sentence agreement. First, a party to a contract is ordinarily entitled to the benefit of his bargain. Although permitting a defendant to withdraw his plea restores him to his original position, such a remedy is generally insufficient to fulfill the defendant’s "expectation interest” in the contract. It seems unfair to countenance an intentional breach of contract by a member of the judiciary, while at the same time insisting that any other party to a contract must ordinarily perform the obligations he or she has un dertaken. A system that permits trial judges to break their promises with impunity is likely to be perceived by the public, at best, as inconsistent and, at worst, as hypocritical.
This appearance of unfairness, however, is outweighed by society’s interest in individualized sentencing. In order to ensure individualized sentencing, judges must refrain from deciding what sentence to impose until they have reviewed the presentence report. As the Supreme Court stated in People v Triplett, 407 Mich 510, 513-515; 287 NW2d 165 (1980):
"In People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973), this Court emphasized its commitment to the principles that criminal punishment must fit the offender rather than the offense alone and that sound discretion must be exercised in sentencing matters. We stated:
" ’The modem view of sentencing is that the sentence • should be tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. A judge needs complete information to set a proper individualized sentence.’ (Emphasis supplied.) * * *
"To effectuate these goals, it is patent that sentencing inquiries must not be undertaken in a vacuum. Rather such inquiries must be guided by complete and detailed information regarding the offender if the sentence prescribed is to fulfill society’s dual goals of rehabilitation and protection. * * *
"The presentence report is a vital and necessary component of this effort to prescribe informed, individualized punishment in felony matters. * * * Indeed, unlike its discretionary predecessor, 1927 PA 175, ch XI, § 14, the present act mandates that '[b]efore sentencing any person charged with a felony, * * * the probation officer shall inquire into the antecedents, character and circumstances of such person or persons, and shall report thereon in writing to such court or magistrate’. "(Emphasis supplied.) MCL 771.14; MSA 28.1144. * * * In People v Brown, 393 Mich 174, 181; 224 NW2d 38 (1974), this Court explicitly recognized the critical importance of such a document in our holding that sentence may not be pronounced without the aid of a presentence report. It was further held that such a report may not be waived 'even if the prosecutor, judge and defendant deemed it expedient in a particular case’ to do so. Id., 181. Our case law and statutory pronouncements therefore clearly attest to the pivotal significance of both 'the presentence investigation and report in the development of individualized sentencing determinations.”
A trial judge who enters into a binding sentence agreement before reviewing the presentence report has effectively abandoned his obligation to the public and the defendant to make the punishment fit the criminal as well as the crime. The instant case illustrates the danger inherent in allowing trial courts to decide upon a sentence before reviewing the presentence report. Here, a defendant with two prior felony convictions was promised an 18-month prison term for taking the life of a fellow human being by stabbing him with a knife. Such a disposition would have undoubtedly added to the sense of injustice shared by those who are currently serving lengthy prison terms for committing victimless, malum prohibitum crimes.
I hold that a sentence bargain is unenforceable by the defendant unless the trial court has reviewed an updated presentence report before en tering into the agreement. If the trial court promises the defendant a particular sentence before it reviews the presentence report, the defendant has the right to withdraw his plea if the court breaks its promise but is not entitled to specific performance.
Since in the case at bar the trial court promised the defendant an 18-month sentence before it reviewed the presentence report, the defendant is not entitled to specific performance.
The defendant, however, is not without a remedy. After learning that the trial court would not fulfill its sentence agreement the defendant had the right to withdraw his plea. The trial court gave the defendant an opportunity to exercise this right, but the defendant, after conferring with his attorney, declined to do so. Defendant’s refusal to withdraw his plea was not a waiver of this right. Quite understandably, the defendant insisted that the trial court comply with this Court’s decision in People v Dixon, supra, by imposing the agreed-upon sentence. The defendant should not be penalized for failing to predict that the present panel of this Court would not follow Dixon. Now that this Court has declined to follow Dixon, the defendant must be given another opportunity to withdraw his plea.
Remanded to the lower court to permit the defendant to withdraw his plea.
Of course, specific performance is only required where the remedy at law — damages—is inadequate. It is safe to say that an award of damages would be inappropriate in the present context.
Dixon was decided on February 4, 1981, and the trial court promised the defendant an 18-month sentence on March 2, 1981. However, the record does not show that the trial court was aware of the Dixon case. | [
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D. F. Walsh, J.
The question presented in this case is the effect of an injured employee’s negligence, and the consequent reduction in the employee’s recovery from a third-party tortfeasor, on the employer’s or carrier’s statutory lien in the amount of workers’ compensation benefits paid to the employee to the date of the recovery. MCL 418.827(5); MSA 17.237(827X5).
Plaintiff Patricia Land suffered work-related injuries on April 6, 1972, and has been receiving workers’ compensation benefits from her employer, intervening plaintiff General Motors Corporation, Assembly Division. She also filed a civil action in tort against defendant, The George Schmidt Company, to recover damages for her April 6, 1972, injuries. Defendant was the manufacturer of the machine which plaintiff was using at the time of her accident. The tort action ended in a pretrial settlement in the amount of $300,000. The parties stipulated that plaintiff had been 50% negligent; the settlement amount reflected the appropriate comparative negligence adjustment. Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), reh den 406 Mich 1119 (1979).
Asserting its statutory right to a lien against the proceeds of the settlement in the amount of workers’ compensation benefits paid to plaintiff to date, General Motors Corporation, Assembly Division, intervened. MCL 418.827(5); MSA 17.237(827X5). The circuit court ruled that intervening plaintiff’s statutory lien was to be reduced by 50%, the stipulated adjustment for plaintiff’s negligence. Intervening plaintiff appeals.
The Worker’s Disability Compensation Act (WDCA) provides that acceptance of compensation benefits shall not act as an election of remedies; injured employees may also proceed to enforce the liability of third-party tortfeasors for their work-related injuries. MCL 418.827(1); MSA 17.237(827X1). After deduction for expenses of the recovery, however, any recovery from a third-party tortfeasor must first be used to reimburse the employer or workers’ compensation carrier for compensation benefits paid or payable to date; the balance of the recovery is to be treated as a credit against compensation benefits to be paid in the future. MCL 418.827(5); MSA 17.237(827)(5). Under this system, the injured employee ultimately receives the more generous of the two recoveries— tort or workers’ compensation. Great American Ins Co v Queen, 410 Mich 73, 89; 300 NW2d 895 (1980).
MCL 418.827(5); MSA 17.237(827X5) provides clearly and unambiguously that the employer or carrier is to be reimbursed from "any recovery” against a third party for "any amounts” paid or payable to the employee under the WDCA as of the date of the recovery. The statute speaks for itself; there is no room for judicial interpretation or construction. The judiciary has no alternative but to apply the statute in accordance with its plain meaning. Lansing v Lansing Twp, 356 Mich 641, 648-649; 97 NW2d 804 (1959); Lawrence v Dep’t of Corrections, 88 Mich App 167; 276 NW2d 554 (1979), lv den 407 Mich 909 (1979); Eagle Trucking Co v Dep’t of Treasury, 115 Mich App 667; 321 NW2d 765 (1982); Butler v Newaygo, 115 Mich App 445; 320 NW2d 401 (1982). By ordering that intervening plaintiff was entitled to reimbursement of only 50% of the amounts paid to plaintiff under the WDCA, the court impermissibly strayed from the statute’s plain language.
The circuit court’s order is vacated. Remanded for entry of an order consistent with this opinion.
"In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.” | [
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Per Curiam.
Plaintiff was employed by the
Board of Tenant Affairs of the City of Detroit in November, 1970, as a secretary-bookkeeper. In October, 1973, plaintiff filed suit seeking damages sustained as a result of her discharge from her employment because she is white. The suit was initially tried before a jury in July, 1977, which returned a verdict in favor of plaintiff in the amount of $500,000. The defendants were granted a new trial on the ground that the verdict was excessive.
A second trial in the cause was commenced in August, 1980. Liability was admitted by defendants. Only the issue of damages was submitted to the jury. Plaintiff sought damages for lost wages and compensation for the mental anguish, embarrassment, humiliation, and loss of social and religious enjoyment which she allegedly suffered as a result of her wrongful discharge. Plaintiff’s counsel conceded that her lost wages did not exceed $5,-000.
Plaintiff’s expert, a clinical psychologist, testified extensively regarding the causal connection between subsequent events and plaintiff’s emotional and psychological injuries due to her firing. While plaintiff had been a trusting and helping person before her firing, she is now "emotionally paralyzed” and "phobic of trust relationships” as a result of her firing. After her discharge plaintiff was divorced, ceased her church activities, and terminated her participation in work with a community theater group.
Defendant presented no evidence and did not call any witnesses, except for plaintiff, to question her "only about economic” losses.
The jury awarded plaintiff $750,000. The trial judge denied defendants’ subsequent motion for a new trial on the grounds of newly discovered evidence and fraud but, finding the jury’s award to have been excessive, entered judgment in the amount of $500,000, pursuant to an order of remittitur.
Defendants have appealed, claiming their motion for a new trial was erroneously denied; plain tiff has filed a cross-appeal, asserting the remittitur was improper.
The motion for a new trial was based on the proffered testimony of Anthony Ambrozy, who had contacted defendants after the second trial. Ambrozy had been plaintiff’s "companion” and partner in the operation of a dog-grooming business from 1975 until March of 1979. During their relationship they went to numerous Lions football games and the race track. They took out-of-state vacations and attended various social functions. On one occasion, plaintiff was to have belly danced at a party but was unable to, having broken her toe the night before. Plaintiff and Ambrozy also had a sexual relationship.
While we agree with defendants’ claim that the jury’s assessment of the severity and permanency of plaintiff’s emotional and psychological damages may have been considerably different had it been informed of the facts revealed by Mr. Ambrozy, we also agree that the trial court properly denied defendants’ motion for a new trial. Before newly discovered evidence warrants a new trial, the movant must show that he could not with reasonable diligence have discovered the evidence and produced it at trial. GCR 1963, 527.1(6); Hainault v Vincent, 365 Mich 370, 377; 112 NW2d 569 (1961); Moldovan v Allis Chalmers Mfg Co, 83 Mich App 373, 384-385; 268 NW2d 656 (1978).
Defendants have not satisfied their burden of establishing that the evidence could not have been discovered through the exercise of reasonable diligence. During the almost seven years that this litigation had been pending, and through the course of two jury trials, defendants did not conduct any discovery. No depositions were taken of plaintiff or plaintiff’s witnesses, nor were any in terrogatories submitted to plaintiff. Defendants make no allegation of having interviewed any prospective witness or having conducted any investigation into the activities of plaintiff after she was unlawfully fired. Defendants, having failed to even attempt to elicit such information prior to trial, cannot be heard now to assert that plaintiff would not have truthfully answered questions properly put to her.
We find that plaintiff and those witnesses testifying on her behalf did not conceal any facts regarding her relationship with Ambrozy which would have been responsive to a question put to them either on direct or cross-examination. For this reason, we also find no abuse of discretion in the denial of a new trial on grounds of fraud or misrepresentation, GCR 1963, 527.1(9); GCR 1963, 528.3(3).
The record completely supports the trial court’s observation that plaintiff "was never asked whether she attended a restaurant, theater parties, sporting events, or whether she had taken trips or dated”. Plaintiff never testified that she did not engage in such activities subsequent to her firing.
Even if it were possible to discover in the some 900-plus pages of transcript one statement which could objectively be characterized as a lie or misrepresentation in light of the testimony at the hearing, this would hardly warrant the relief sought by defendant. Long ago in Gray v Barton, 62 Mich 186, 196, 197; 28 NW 813 (1886), Justice Morse, speaking for a unanimous Court, wrote:
"But it does not seem to me that the mere allegation that the defendant committed perjury upon the trial, and the belief of the complainant that he can establish such perjury upon a retrial, is such a fraud as will authorize a court of equity to interfere, after the judgment against him in a court of law has been affirmed by the highest tribunal. The establishment of such a right in the defeated party would open the way for another contest in equity in almost, if not every, suit decided at law. There is scarcely a controversy in the courts in which there is not a conflict of testimony, and there are quite often charges of false swearing, and seldom is a case tried and decided in which new evidence cannot be obtained after people suppose it to be ended.
"The fraud against which courts of equity generally relieve is the misleading of the defeated party by some artifice or deception of his opponent.”
When a finding is made by the trial court that the only error is the excessiveness of the verdict, the court may deny a motion for new trial on the condition that the nonmoving party consents to the entry of judgment of an amount found by the judge to be the highest amount which the evidence will support. GCR 1963, 527.6. In reviewing the decision of a trial judge to either grant or deny remittitur or grant a new trial, we must determine whether there has been an abuse of discretion. Stevens v Edward C Levy Co, 376 Mich 1, 6; 135 NW2d 414 (1965); Pippen v Denison Division of Abex Corp, 66 Mich App 664, 675; 239 NW2d 704 (1976), lv den 399 Mich 823 (1977). A reviewing court will only substitute its judgment for that of the trier of fact where a verdict has been secured by improper methods, prejudice, or sympathy, or where it is so excessive as to "shock the judicial conscience”. Watrous v Conor, 266 Mich 397, 401-402; 254 NW 143 (1934); Stevens, supra.
Plaintiffs counsel has conceded that plaintiffs lost earnings were not in excess of $5,000. Thus, at least $745,000 of the jury’s verdict must have been for various aspects of pain and suffering. While the question is close, upon careful review of the record, we find that the award of $750,000 shocks the judicial conscience and that remittitur to $500,000 was not an abuse of discretion.
Plaintiff’s complaint sought damages of $200,-000. As the trial court noted, this Court has indicated that, while a jury may award greater damages than those sought, that is one factor to consider in determining whether an award is excessive. Tomei v Bloom Associates, Inc, 75 Mich App 661, 668-669; 255 NW2d 727 (1977).
While plaintiff produced ample evidence at trial as to the existence and possible permanency of her psychological and emotional injuries and the effect the same had had on her personal and social life, we feel compelled to agree with the trial court that the jury’s award of $750,000 for the "imponderables” is so great as to "shock the judicial conscience”. We simply cannot conceive of plaintiff’s nonphysical and subjective damages amounting to $750,000. While there are no allegations by defendants that the verdict was secured by improper methods, prejudice or sympathy, it is likely that the jury was swayed in its evaluation of plaintiff’s damages by the outrageousness of the conduct of defendant city’s agent, Draper, toward plaintiff.
Affirmed. | [
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Cynar, P.J.
Plaintiff Brian Strohmaier brought suit against defendants Associates in Obstetrics & Gynecology, Dr. G. A. Saunders and Dr. Robert M. Stewart for what, in effect, amounts to a claim of "wrongful life”. Defendants filed a motion for summary judgment, asserting that Michigan law does not recognize such a cause of action by a child. A motion for summary judgment was also filed in the companion case brought on behalf of plaintiff’s parents but was later withdrawn. A hearing was conducted, at which time defendants’ motion for summary judgments was granted. Plaintiff appeals as of right.
A motion for summary judgment pursuant to OCR 1963, 117.2(1), tests the legal sufficiency of plaintiffs claim, i.e., whether plaintiff has stated a cause of action. In considering such motions, a court is to consider whether the plaintiffs claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Crowther v Ross Chemical and Mfg Co, 42 Mich App 426; 202 NW2d 577 (1972); Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974).
In this case, plaintiff, an infant, alleges in his complaint that defendants committed acts of negligence and malpractice by failing to inform plaintiffs mother, who was then pregnant with plaintiff, that she had contracted rubella during the first trimester of her pregnancy when they knew, or should have known, of the condition and in thereby not allowing her the option of terminating the pregnancy by means of therapeutic abortion. Plaintiff alleges that as a • direct and proximate result of the negligence and malpractice of defendants he has suffered rubella syndrome and, as a direct and proximate result thereof, he has suffered serious birth defects. Plaintiff seeks damages for the costs of medical care and treatment, the costs of special education, pain, suffering, humiliation, embarrassment, diminution of earning capacity, mental and emotional anguish, and anxiety.
Plaintiffs claim for "wrongful life” is a relatively new theory of liability nationwide. His claim, ultimately, is that he would have been better off not having been born. This cause of action has never been addressed on the merits by the Michigan Supreme Court. A recent decision of a panel of this Court, however, is noteworthy. See Eisbrenner v Stanley, 106 Mich App 357; 308 NW2d 209 (1981), lv den 414 Mich 875 (1982).
The facts involved in Eisbrenner were almost identical to those herein. Plaintiff mother had contracted rubella during her pregnancy, and plaintiff daughter was subsequently born severely deformed. Plaintiffs alleged that defendant doctor negligently failed to diagnose the mother’s rubella, despite the fact that he had seen test results indicating the presence of the disease, and that he had negligently failed to warn plaintiff parents of the possibility that the child would be born with defects. Plaintiffs contended that, if defendant had properly informed them of the risk, the family would have decided upon an abortion rather than taking the chance of birth defects. The parents sought damages for mental distress and the cost of the child’s treatment. Damages on behalf of the child were requested for pain and suffering. The child died shortly before the trial. Eisbrenner, supra, p 360.
In the Eisbrenner opinion, the panel held that, although the parents could seek damages for both medical expenses and mental distress, the child’s claim did not constitute a valid cause of action. Before reaching the conclusion that no valid "wrongful life” claim existed in favor of the child, the opinion outlined the history of claims for "wrongful life” and the rationale behind decisions nationwide which have almost unanimously refused to allow the cause of action.
It is noted that there have been several recent decisions, not mentioned in Eisbrenner, which have denied a child’s cause of action for "wrongful life”. Those include White v United States, 510 F Supp 146 (D Kan, 1981); Phillips v United States, 508 F Supp 537 (D SC, 1980); DiNatale v Lieberman, 409 So 2d 512 (Fla App, 1982); Moores v Lucas, 405 So 2d 1022 (Fla App, 1981); and Elliott v Brown, 361 So 2d 546 (Ala, 1978). In addition, the Pennsylvania Supreme Court has affirmed a lower court’s denial of the child’s cause of action in Speck v Finegold, 497 Pa 77; 439 A2d 110 (1981), cited in Eisbrenner, supra, p 364.
The seminal wrongful life case is Gleitman v Cosgrove, 49 NJ 22; 227 A2d 689 (1967), which barred recovery for both the child and its parents. Although the New Jersey Supreme Court has since recognized a cause of action in favor of parents for wrongful birth, the Gleitman case is still noteworthy with regard to its denial of recovery for the child. In Gleitman, the plaintiff child suffered birth defects as a result of his mother’s exposure to German measles during the first trimester of pregnancy. The defendant doctors, who cared for the mother during her pregnancy and who were informed that she had contracted measles, neglected to advise her of the substantial possibility that the child would suffer defects. The theory of the plaintiff’s suit, like that in the instant case, was that the mother might have sought an abortion had she been informed of the prenatal effect of German measles. The majority opinion in Gleitman affirmed a judgment of dismissal against the child on the basis that the conduct complained of, even if true, did not give rise to damages cognizable at law. Gleitman, supra, p 692. The majority opinion in Gleitman noted that compensatory damages are measured by comparing the condition that the plaintiff would have been in but for the negligence with the impaired condition resulting from the negligence. The Court reasoned that it was impossible to weigh the difference between life with the suffered defects against the alternative of nonexistence.
In Eisbrenner, supra, a panel of this Court, following Gleitman, concluded that the inherent difficulty in assessing damages was reason to deny a child’s cause of action for wrongful life. Still, the Court was not faced with the question of whether such a child might maintain a cause of action only for special damages. Although we are certainly sympathetic to the plight of children like plaintiff, who suffer serious birth defects, we believe the reasoning of the Gleitman and Eisbrenner cases applies equally to a claim for special damages.
This Court also notes that the California Supreme Court has recently resolved a split of opinion among the California appellate courts as to whether a cause of action by a child for "wrongful life” exists. As pointed out in Eisbrenner, the case of Curlender v Bio-Science Laboratories, 106 Cal App 3d 811; 165 Cal Rptr 477 (1980), was the only case in the nation at the time of the Eisbrenner opinion which recognized the child’s cause of action. Since that time, the California Court of Appeals handed down a decision in Turpin v Sortini, 119 Cal App 3d 690; 174 Cal Rptr 128 (1981), which rejected the decision in Curlender._
This conflict was recently addressed by the California Supreme Court in Turpin v Sortini, 31 Cal 3d 220; 182 Cal Rptr 337 (1982). In a 4 to 2 opinion, the California Supreme Court permitted a cause of action for special damages. The court reasoned that such damages are readily ascertainable and that it would be illogical to permit a parent to recover special damages for a child’s medical care while prohibiting the child from doing so. The court did not believe that the measurable economic losses should be offset by any benefit of existence over nonexistence. We believe that the Court in Turpin erred in that regard. The special damages that are claimed cannot be considered in a vacuum separate from the reality that, but for the alleged negligence, plaintiff would not exist. Plaintiff’s damages, general and special, consist of the diffference between his present life with defects and no life at all. Plaintiffs economic liabilities, like the daily pain and suffering he must endure, are a part and parcel of his life with birth defects. Therefore, this Court cannot view those economic losses apart from the incalculable benefit of life conferred upon plaintiff by the events antecedent to his birth. Consequently, we conclude that plaintiff’s special damages are as incognizable as any general damages for pain and suffering.
We affirm the trial court’s grant of summary judgment.
Plaintiff’s mother had been a patient of defendants prior to her pregnancy and was cared for by defendants during her entire pregnancy. Plaintiff’s mother was treated for the rubella symptoms by defendants, but she was never told of the possibility of having contracted rubella nor of the dangers of rubella. Defendants told plaintiff’s mother that the symptoms were caused by an allergic reaction.
Prior to the end of the first trimester of pregnancy, the state may not interfere with or regulate an attending physician’s decision, reached in consultation with the patient, that the patient’s pregnancy should be terminated. Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973).
Berman v. Allan, 80 NJ 421; 404 A2d 8 (1979).
In Dorlin v Providence Hospital, 118 Mich App 831; 325 NW2d 600 (1982), a panel of this Court was presented with the special damages question at oral argument. The panel summarily rejected the claim inasmuch as it had not been briefed on appeal and because the panel believed that the creation of such a new cause of action should come from the Legislature or Supreme Court. | [
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G. R. McDonald, J.
Plaintiff condemned the property of defendant H. R. Terryberry Company, a Michigan copartnership, for the Gerald R. Ford Museum, pursuant to MCL 213.361 et seq.; MSA 8.261(1) et seq. Located on the property was a two-story building in which defendant conducted its custom jewelry manufacturing business. Defendant conceded the necessity of the taking but contested the issue of compensation. Plaintiff produced one expert witness to establish compensation and, over repeated objections by plaintiff, three partners of defendant were permitted to testify concerning the value of the property.
Each partner employed a different valuation method in arriving at an opinion of the value of the condemned property. Based on a formula utilizing the cost of reproducing thé building, which he had determined by obtaining quotations from building contractors and an insurance appraisal, partner George Byam concluded the value of the building was $357,750. Partner Robert Lampen’s opinion valuing the property at $326,275 was based on a formula using the rental value of the building, which he determined by comparing the condemned property with another rental property he personally owned. In partner Brent Slay’s opinion, based on an averaging of the sale prices of three other properties which he had concluded were comparable to the Terryberry property, the value of the property was $353,500. Slay determined the market price of these other properties based on information from local newspapers and real estate listings.
The jury returned a verdict of $250,000, which was more than $75,000 above plaintiffs expert appraiser’s value. The court entered judgment on February 27, 1981. Subsequently, defendant requested attorney fees of $25,000 pursuant to MCL 213.66; MSA 8.265(16). On May 22, 1981, the trial court denied defendant’s request. From the February 27, 1981, judgment, plaintiff appeals as of right. From the May 22, 1982, order denying attorney fees, defendant appeals as of right.
As the partners admittedly were not qualified as experts in the field of real estate, plaintiff argues they should have been required to testify only in a manner and to an extent as would any lay witness in a condemnation case.
Any ordinary individual who has the testamentary qualifications of knowledge of the question about which he attempts to testify may testify as to the value of land. A lay witness will be permitted to testify as to the value of land if he has seen the land and has some knowledge of the value of other lands in the immediate vicinity. In re Brewster Street Housing Site, 291 Mich 313, 345; 289 NW 493 (1939).
In more general terms, the Michigan Rules of Evidence provide that a lay witness must have "personal knowledge of the matter” to which he testifies and evidence to prove personal knowledge may consist of the testimony of the witness himself, MRE 602, and any opinion or inference must be "rationally based on the perception of the witness and * * * helpful to a clear understanding of his testimony or the determination of a fact in issue”. MRE 701.
Plaintiff asserts the owners’ opinion testimony was inadmissible as it was not based upon their personal knowledge, but rather upon hearsay, and because the methods of valuation used by Lampen and Byam were at variance with judicially accepted methods. In admitting the partners’ testimony over repeated objections by plaintiff on these grounds, the trial court ruled that "an owner by the mere fact of ownership can testify as to the value of his property in a condemnation case”.
There are no Michigan cases specifically addressing the standards governing admission of an owner’s testimony as to the value of condemned property. Although several jurisdictions hold that ownership alone does not qualify an individual to testify regarding the value of real estate in a condemnation case and that he must establish the minimum qualifications generally applicable to lay witness testimony, the prevailing view is that
"the owner of the land taken is generally held to be qualified to express his opinion of its value merely by virtue of his ownership. He is deemed to have sufficient knowledge of the price paid, the rents or other income received, and the possibility of the land for use, to have a reasonably good idea of what it is worth. The weight of his testimony is for the jury, and it is generally understood that the opinion of the owner is so far affected by bias that it amounts to little more than a definite statement of the maximum figure of his contention, thus taking the place of the ad damnum of the writ in ordinary civil cases.” 5 Nichols on Eminent Domain (rev 3d ed, 1981), § 18.4(2), pp 18-141 through 18-156.
See, also, United States v 329.73 Acres of Land, Situated in Grenada and Yalobusah Counties, State of Mississippi, 666 F2d 281, 284 (CA 5, 1981), and cases cited therein. (Attack on owner’s valuation as not based on any accepted method of valuation precluded by established rule that opinion testimony of a landowner as to the value of his land is admissible without further qualification.)
Where an owner is per se qualified, any lack of knowledge goes only to the wieght of his testimony. State ex rel Herman v Lopez, 8 Ariz App 61; 442 P2d 884 (1968) (cross-examination of owner about how he arrived at valuation affects weight but not competency). McCaffery v Northern P R Co, 22 ND 544; 134 NW 749 (1912) (admissibility of owner’s testimony does not rest on actual knowledge or on a presumption of knowledge).
The rationale underlying liberal admission of the owner’s opinion testimony in condemnation cases was articulated by the Circuit Court of Appeals for the District of Columbia:_
"The owner does not testify as just another expert, but from his unique position as the individual who stands to gain or lose the most from the tribunal’s determination of the value of his property. The owner is draped with no cloak of expertise; the jury is aware of the owner’s interests and free to evaluate his testimony, even to discard it altogether, in weighing the evidence. * * * [T]he right of the owner to testify is based, at least in part, on the recognition of the subjective nature of value. Opinions as to value differ, and the owner has a right to place all evidence pertaining to the value of his condemned property before the trier of fact.” (Footnote omitted.) Dist of Columbia Redevelopment Land Agency v Thirteen Parcels of Land in Squares 859, 912, 934, and 4068 in Dist of Columbia, 175 App DC 135, 138; 534 F2d 337, 340 (1976).
Such considerations lead us to conclude that liberal admission of an owner’s testimony should be permitted in condemnation cases. Traditionally, in Michigan, evidence in condemnation cases has been more liberally received than in other cases. In re Memorial Hall Site, 316 Mich 215, 220; 25 NW2d 174 (1946). Alleged experts have no particular monopoly on knowledge. One does not have to be an expert to testify as to the value of land. In re Brewster Street Housing Site, supra, p 345; City of Detroit v Hartwick, 204 Mich 635; 171 NW 405 (1919).
However, we believe that, before an individual may testify by virtue of his ownership of property rather than merely as an ordinary lay witness, a very basic foundation should first be laid establishing that the owner is familiar with his property and with any other property that he testifies about in regard to comparable value. Thus, for example, one who has inherited property sight unseen or who is an absentee landlord with no realistic idea of the property’s condition or surroundings would not be permitted to testify by virtue of mere legal ownership.
Once having thus qualified, an owner may testify regarding the value of his land and explain the method utilized to arrive at his figure. As in the case of expert testimony, any explanation of the method used or the source or nature of the data relied upon in arriving at such value merely goes to the weight not to the admissibility of his evidence.
The opposing party will have a full range of cross-examination to expose errors in the owner’s reasoning or basis for his opinion or to discredit an unrealistic opinion before the trier of fact. Instructions to the jury as to the proper definition of market value upon which its award must be based, SJI 90.06, and as to the proper use of comparable market transactions by a witness in the formulation of an opinion, SJI 90.16, will enable the jury to properly evaluate the weight and credibility of the owner’s testimony.
Applying these principles to the instant case, we find the opinion testimony of the partners who owned the condemned property to have been properly admitted. The record reveals that each partner was fully familiar with the property on which they operated their business. When testifying regarding the properties claimed to be comparable to the condemned property, Slay and Lampen had personally inspected, at least briefly, each of those buildings. Although Slay admitted he did not inspect the inside of two of the comparable properties, he was familiar with their exterior condition and the neighborhood in which they were located.
The necessary foundation having been laid, the owners were properly permitted to give their opinion as to the value of the property and to reveal the manner in which they reached their conclusion. The weight and credibility of the testimony was for the jury.
Plaintiff also claims it was denied a fair trial when defendant’s counsel, during closing argument, read to the jury excerpts from a newspaper article indicating expert appraisals were essentially worthless. This was improper, the newspaper article not having been in evidence or admissible. Ellsworth v Massacar, 215 Mich 511, 516-517; 184 NW 408 (1921).
However, plaintiffs counsel’s failure to raise timely objection to such argument and to request a curative instruction precludes appellate review as we do not consider the statements of counsel "so extremely prejudicial that even a correction by the court would not undo the harm”. Smith v E R Squibb & Sons, Inc, 69 Mich App 375, 386; 245 NW2d 52 (1976), aff’d 405 Mich 79; 273 NW2d 476 (1979).
Defendant claims that the trial court erred in refusing to award attorney fees pursuant to § 16 of the recently enacted Uniform Condemnation Procedures Act, 1980 PA 87; MCL 213.66(3); MSA 8.265(16)(3). These proceedings to acquire defendant’s property were commenced in 1979, pursuant to 1966 PA 295; MCL 213.361 et seq.; MSA 8.261(1) et seq. Section 23 of 1966 PA 295 provides that an award of attorney fees may not exceed $100, MCL 213.383; MSA 8.261, while § 16 of 1980 PA 87 is more liberal.
Defendant’s claim is without merit, however, as we find the Uniform Condemnation Procedures Act inapplicable to these proceedings. Section 25 of the Uniform Condemnation Procedures Act delineates which actions for acquisition of property are to be governed by that act. MCL 213.75; MSA 8.265(25). Subsection 2 provides that actions under 1966 PA 295 "may be commenced pursuant to and be governed by” the act, effective May 1, 1980. Subsection 3 provides such actions "shall be commenced pursuant to and be governed by” the act, effective April 1, 1983. Provisions of 1966 PA 295, including that governing the award of attorney fees, are repealed, effective April 1, 1983. MCL 213.76; MSA 8.265(26).
The act is silent as to its applicability to actions commenced, as was the one in the instant case, prior to May 1, 1980, pursuant to 1966 PA 295. Given the specificity of the language in MCL 213.75; MSA 8.265(25) concerning those actions to which it is applicable, we do not believe the Legislature intended that actions not "commenced pursuant” to the act be governed, in whole or in part, by provisions thereof.
Affirmed.
See Commonwealth of Kentucky, Dep’t of Highways v Fister, 373 SW2d 720 (Ky App, 1963); Utah State Road Comm v Johnson, 550 P2d 216 (Utah, 1976).
Some jurisdictions have adopted qualified variations of the liberal rule, see 5 Nicholas, supra, pp 18-156 through 18-162, fn 29-29.2. | [
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R. B. Burns, P.J.
The parties stipulated to the following facts. On December 14, 1972, plaintiffs, as sellers, entered into a land contract with defendant, as purchaser, for the sale of a farm located in Blair Township, Grand Traverse County. The land contract provided for monthly installment payments of $500 on the 14th day of each month, beginning on January 14, 1973. The contract did not specify the place of payment. Since September, 1976, when a prior foreclosure action was settled by the parties, defendant has always mailed the monthly payments to plaintiffs’ home. The contract also provided that upon default in a payment the seller could declare the remaining unpaid balance immediately due and payable. In 1976, plaintiffs instituted a foreclosure action which was dismissed by stipulation of the parties after a settlement was reached. The stipulation provided that a subsequent default in a payment under the land contract would immediately accelerate the balance due. The June, 1980, payment which was due on Saturday, June 14, 1980, was received by plaintiffs on Wednesday, June 18, 1980. On Friday, June 20, 1980, plaintiffs’ attorney mailed the payment back to defendant with a letter notifying her that plaintiffs had elected to accelerate the balance due. On July 7, 1980, this foreclosure action was commenced. Defendant continued to mail every monthly payment after June, 1980, on or before the date due.
A bench trial was held in circuit court. Several exhibits were admitted into evidence by stipulation, including the stipulation of facts summarized above; the land contract; the envelope addressed to plaintiffs in which the June, 1980, payment was sent and which bore a postmark of June 16, 1980; the June 20, 1980, "notice of acceleration” letter from plaintiffs’ attorney to defendant with the associated envelope postmarked June 21, 1980; defendant’s record of payments made to plaintiffs between September, 1976, and January, 1981; and the stipulation and order entered after settlement of the prior foreclosure action.
Plaintiffs testified that the payments on the land contract were due on the 14th of each month. However, plaintiffs received payments anywhere from the 14th to the 18th. Since the settlement of the prior foreclosure action in September, 1976, defendant had sent payments by registered mail to plaintiffs’ home. When the June, 1980, payment did not arrive on Friday, June 14, 1980, plaintiffs decided that they would foreclose on the land contract. Plaintiffs met with their lawyer in the morning of June 18, 1980, and received defendant’s June payment in the mail later that day. Plaintiffs did not cash the check but returned it to defendant. Plaintiffs had accepted and cashed all payments sent by defendant between September, 1976, and May, 1980, without objection, even though some payments were received after the 14th of the month.
Chester Doe testified that he was an employee of defendant and her husband. He mailed defendant’s check to plaintiffs each month by certified mail. He was always given the envelope containing the payment on the 12th or 13th of the month with instructions to mail it before the 14th. Late in the afternoon on Friday, June 13, 1980, Doe mailed the June payment at the post office. He paid the postal clerk $1.40 for the cost of sending the payment certified mail with a return receipt requested. However, he testified, the clerk who took the envelope seemed confused and did not appear to know what he was doing. Doe filled out the required receipt and left the envelope with the clerk but did not see him put the postage on the envelope. That same weekend, defendant’s daughter was being married, and defendant and her husband went out of town after the wedding. On Monday, June 16, 1980, Doe found the envelope containing the payment in defendant’s mailbox. It had been returned for postage due. The envelope had a standard 15-cent stamp on it, which Doe did not understand because he had paid for certified mail. Doe could not figure out why the envelope had been returned for postage due so he took it back to the post office that same afternoon but arrived just as the office was closing. Doe was upset that he was unable to straighten the matter out at that time, so he returned to the post office on Tuesday morning, June 17, 1980. Doe talked to a different postal clerk at that time, explaining that he had paid for certified mail and that the envelope had been improperly returned to sender for postage due. Defendant left the envelope with the clerk for mailing without paying any more money. Although Doe received a receipt when he originally mailed the payment, he was unable to find the receipt for purposes of offering it into evidence at trial. Defendant did not become aware of the incident until June 18, 1980, when she and her husband returned home from out of town.
Ray DeVries, the Traverse City Postmaster, testified that the post office had a new window clerk working at the time the incident in question occurred. The new clerk made some errors while working at the window, including failing to put postage on some certified mail, which was returned. In addition, a subsequent audit indicated that the clerk had an overage in his account. DeVries also testified that it was possible for the events which Doe described to have occurred at the post office. While the improper postage on defendant’s letter should have been found on Friday, or Saturday, it was possible that it was not found or returned to defendant until Monday, June 16, 1980, thus explaining the postmark of that date.
The trial judge made findings of fact and conclusions of law as required by GCR 1963, 517. He found that since 1976 defendant had consistently mailed her payments on or before the 14th of the month and that the payments were regularly received by plaintiffs after that date. The judge further found that the June, 1980, payment was received by plaintiffs on June 18, 1980, and was postmarked on June 16, 1980.
The court also found that although the payment in question in this case was mailed on June 13, 1980, it was not received on Saturday, June 14, 1980, and was not delivered in the normal course. Therefore, the payment was not timely, defendant was in default, and the balance due was automatically accelerated.
It is well settled that, in contractual relationships, the actual delivery of legal tender is not required where there is a course of dealing which justifies the debtor in believing that some other means (e.g., mailing) and forms of tender (e.g., personal check) will suffice. Birznieks v Cooper, 405 Mich 319; 275 NW2d 221 (1979). The risk of loss or delay in delivery of a payment made by mail must be borne by the creditor who has agreed to accept payments by mail, not the debtor. 60 Am Jur 2d, Payment, § 17, p 622, states:
"Payment may be made by mail where, by the creditor’s express direction or assent, by the usual course of dealing between the parties, or by other facts from which such direction or assent may be inferred, the creditor has authorized the money to be thus delivered to him.
"If an obligee has agreed to receive payment by mail, the risk of loss in the event of nondelivery falls on the creditor rather than on the debtor. The posting of a letter inclosing the remittance as directed constitutes a payment, although the letter is lost, and a delay of the remittance in the mail will not result in a forfeiture or loss of rights through nonpayment.” (Footnotes omitted.)
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Per Curiam.
On September 24, 1980, defendant was convicted by jury of three counts of drawing a check without having a checking balance, contrary to MCL 750.131a; MSA 28.326(1). Five days later, in a bench trial, defendant was found to be a six-time felony offender, pursuant to MCL 769.12-769.13; MSA 28.1084-28.1085. Sentenced on October 8, 1980, to 7-1/2 to 15 years in prison, he appeals of right raising three issues: (1) failure of the prosecution to call a res gestae witness; (2) impeachment by evidence of two unspecified convictions; and (3) error in instructing the jury. We find the second issue dispositive and,remand for a new trial.
Before trial began, the prosecutor indicated that if the defendant took the stand, the prosecution intended to impeach defendant with evidence of breaking and entering in 1977, attempted breaking and entering in 1975, uttering and publishing in 1975, and attempted larceny in a building in 1967. The trial court expressed reluctance to use the 1967 conviction because of its age, and, citing People v Moseley, 94 Mich App 461; 290 NW2d 39 (1979), ruled that the 1970 uttering and publishing conviction could be referred to as an unspecified felony and the 1975 attempted breaking and entering could be referred to specifically. Defense counsel objected, stating that with one offense specified and the other unspecified, the jury might infer that the unspecified conviction related to passing bad checks. The following exchange then occurred:
"The Court: It could, perhaps.
"Mr. Stiles: And I am thinking it would be the wisest way for the court would be to strike out that 1970 but since this is in your discretion and from all the circumstances—
’’The Court: Or I could direct the prosecutor just to inquire whether Mr. Reynolds acquired a felony in October of ’70 and also October of ’75.
”Mr. Stiles: That would be somewhat better.
"The Court: Is that agreeable, Mr. Schafer?
”Mr. Schafer: I have no problem with that, your Honor.”
Further consideration was postponed until the jury was selected and the prosecution obtained records of the prior convictions. Subsequently, during the trial, the court ruled that the two convictions were felonies involving dishonesty, theft and false statement, and that their probative value outweighed their prejudicial effect on defendant. The court then ruled that the prosecutor "may make inquiry in both matters as we agreed earlier”.
Defendant’s trial occurred in September 1980. At that time, this Court was split on the question of impeachment by evidence of unspecified prior felonies. Holding the practice error were: People v Jones, 92 Mich App 100, 112-113; 284 NW2d 501 (1979); People v Garth, 93 Mich App 308, 315-316; 287 NW2d 216 (1979), lv den 409 Mich 854 (1980). Condoning the practice were: Moseley, supra, and People v Van Dorsten, 96 Mich App 356, 359; 292 NW2d 134 (1979). Thus, the trial court can hardly be faulted for ruling that impeachment by evidence of unspecified convictions was permissible. However, on November 19, 1980, the Supreme Court reversed Van Dorsten, stating:_
"[W]e reverse the Court of Appeals judgment and remand the case to the Calhoun Circuit Court for a new trial. It is improper to impeach a defendant by telling the jury only of the existence of unnamed prior felony convictions, without providing the names of the offenses. It is the nature, rather than the fact, of a prior felony conviction which the jury is to use in its evaluation of credibility.” 409 Mich 942.
Subsequent to the Supreme Court’s order in Van Dorsten, this Court has ruled that impeachment by evidence of prior unspecified convictions is erroneous. People v Kramer, 108 Mich App 240, 245-246; 310 NW2d 347 (1981); People v Ovegian, 106 Mich App 279, 282-283; 307 NW2d 472 (1981); People v Slager, 105 Mich App 593, 596-597; 307 NW2d 376 (1981); People v Howard, 104 Mich App 598, 600; 305 NW2d 268 (1981).
Nevertheless, the prosecution argues that the error is not reversible on two grounds. First, since Van Dorsten was not decided until two months after defendant’s trial, the ruling should not be applied retroactively. Second, the error was harmless.
The question of Van Dorsten’s retroactivity is of first impression. However, where there has been a split of authority on a substantive issue in this Court and a subsequent decision of the Supreme Court resolves the dispute, in the absence of the Supreme Court ruling that the ruling be made prospective only, the decision has been given retroactive effect. People v Longwish, 109 Mich App 15, 18-20; 310 NW2d 893 (1981). It is undisputed that in Van Dorsten the Supreme Court was not making new law but was clarifying existing law. It also appears that in the instant case there had not been a profound reliance on the old rule. Finally, we note that the Supreme Court itself gave retro active application to the Van Dorsten rule in People v Huff, supra, a case where trial occurred before Van Dorsten was decided. For this reason and for the reasons set forth in Longwish, supra, we reject the prosecution’s argument that Van Dorsten should not be applied retroactively.
However, contrary to defendant’s contention, the error is not reversible per se. Several post-Van Dorsten opinions have found the error harmless. Kramer, supra; Ovegian, supra. In People v McBride, 413 Mich 341, 345; 319 NW2d 535 (1982), the Supreme Court acknowledged that under proper circumstances the error could be harmless.
In the instant case, we cannot find the error harmless. Following the trial court’s ruling on impeachment, the defendant elected not to testify. Had he testified, he claims he would have asserted he did not know his account was closed.
"Such a theory could draw significant support from the defendant’s testimony. Because the defendant did not take the stand, it is of course impossible to determine the value of the testimony he might have given. It is not clear that his decision to remain silent was a tactical move unaffected by fear of improper impeachment. See People v Denny, 86 Mich App 40; 272 NW2d 332 (1978).” People v Vincent, 94 Mich App 626, 635; 288 NW2d 670 (1980), lv den 409 Mich 857 (1980).
Although defendant’s sister, the alleged missing witness, may have been able to testify as to defendant’s intent, defendant still is the only person who can offer direct evidence of his intent and 0 knowledge at the time he wrote the checks. Although failure of defendant to testify does not mandate suppression of his prior record or reversal on appeal, People v Whigham, 102 Mich App 96, 103; 300 NW2d 753 (1980), lv den 412 Mich 932 (1982), it is a strong factor weighing in favor of both. In this case, the evidence against defendant was largely circumstantial and far from overwhelming. In such circumstances the error cannot be harmless. McBride, supra, p 343.
Further, the similarity between the 1970 uttering and publishing conviction and the charged offense was so great, it would have been an abuse of discretion to allow specific mention of that conviction. People v Gary Johnson, 105 Mich App 332, 340-341; 306 NW2d 501 (1981); People v Williams, 413 Mich 72; 318 NW2d 462 (1982).
Because the error is not harmless, defendant’s convictions are reversed and the matter remanded for a new trial. Since issues (1) and (3) raised in this appeal are likely to be raised on retrial, some guidance by us will be helpful. As to issue (1), viz.: whether defendant’s sister was a res gestae witness, defendant should raise the issue prior to trial. If the prosecution refuses to endorse the witness, the court should hold an evidentiary hearing prior to trial to decide whether the witness is in fact a res gestae witness. See People v Willie Pearson, 404 Mich 698, 721-722; 273 NW2d 856 (1979).
As to issue (3), the adequacy of the trial court’s instructions to the jury, we find no error. The specific intent to defraud necessary to commit the crime was thoroughly explained to the jury and such an intent implies knowledge of the account’s statüs.
Reversed and remanded.
Also, People v Huff, 101 Mich App 232, 237; 300 NW2d 525 (1980), decided by this Court November 1980, two months after trial in the instant case. | [
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] |
R. B. Burns, P.J.
Defendants appeal a May 15, 1980, circuit court judgment ruling that the buildings and fixtures located on plaintiffs’ property are to be included in assessing the fair market value of the property for the purpose of the exercise of the option to purchase contained in the lease held by defendant Process Installations, Inc., an assignee of defendant Vulcan-Cincinnati, Inc. Plaintiffs have filed a delayed cross-appeal, challenging an August 8, 1977, determination of the trial court declaring that defendant Process Installations, Inc., had a right to continued possession of plaintiffs’ property under the terms of the lease dated June 23, 1970.
Plaintiffs initiated this suit as a tenancy proceeding in district court, contesting Process Instal lations’ right to possession of a 14-acre plot of land located near the Village of Northport and owned by plaintiffs. Defendants pled an equitable defense, causing the matter to be removed to circuit court. The property at issue in this case (hereinafter referred to as the Northport property) consists of the acreage and three buildings: a boiler, a storage facility, and a plant for the production of a catalyst used in the manufacture of industrial grade methanol.
The facts out of which this suit arose are extensive and complicated. This case basically resulted from the continuing financial difficulties of the chemical plant which was originally owned by plaintiff Theodore Wentworth and two of his brothers.
Wentworth and his brothers owned an Ohio-based firm, Vulcan-Cincinnati, in equal shares. In the early 1960’s, they agreed that Theodore would form a second corporation, Chemical Processes of Ohio, Inc., to manage the Northport operations.
The essence of the scheme contemplated by the Wentworth brothers was that Chemical Processes would develop processes for the exclusive benefit of Vulcan-Cincinnati. To facilitate construction of the catalyst plant, Wentworth borrowed $160,000 from the Michigan National Bank, secured by a mortgage on the Northport property. This money was turned over to Vulcan-Cincinnati, which used it, along with funds of its own, to develop the property. Vulcan-Cincinnati made the mortgage payments. On January 1, 1962, a lease was executed between Theodore Wentworth as lessor and Chemical Processes of Ohio, Inc., as lessee. This lease, which will be discussed more thoroughly below, covered a term of ten years and was granted for the nominal consideration of $12 per year. The lease was drafted by Theodore Wentworth’s attorney.
Theodore Wentworth went into semi-retirement in 1964. Returning from California in 1966, he found the company $1.2 million in debt. Went-worth took over the operation of Vulcan-Cincinnati, which then merged with Chemical Processes, Inc.
In 1966, a committee composed of the principal creditors of Vulcan-Cincinnati was formed in an effort to resolve the problems posed by the corporation’s indebtedness. One of these creditors was Allstates Design and Development Company, a firm that was later to figure prominently in events relevant to this litigation. While Wentworth was able to convince the creditors’ committee not to proceed with bankruptcy proceedings, the committee required as an alternative that Wentworth sign a debenture issue and that he and Shirley Wentworth personally guarantee the debentures. The debenture issue was executed on July 1, 1967, and represented $903,413 in indebtedness. Unfortunately, Vulcan-Cincinnati’s financial problems continued.
In 1970, with Vulcan-Cincinnati insolvent, Wentworth began searching for a fresh source of working capital. As a result, an agreement was made between Allstates and Vulcan-Cincinnati during June of 1970. A number of documents of greater or lesser significance were executed during that month; the essential elements of the agreement were as follows:
1. Allstates received 51% of the outstanding Vulcan-Cincinnati stock. Theodore Wentworth retained 35% of that stock. Allstates also received the right to elect four of the seven directors of V ulcan-Cincinnati.
2. Theodore Wentworth received $10,000 for his relinquished shares of stock. Wentworth continued as the chief executive officer of Vulcan-Cincinnati and was granted a salary increase. The agreement also resulted in the cancellation of the Wentworths’ debenture guarantee.
3. Vulcan-Cincinnati received a loan from All-states to cover its operating requirements.
4. Wentworth was to execute a new ten-year lease covering the Northport property, with Vulcan-Cincinnati as lessee. According to the testimony of an officer of Allstates, the execution of a new lease was central to this agreement as far as Allstates was concerned.
Pursuant to this agreement, a lease was prepared naming Wentworth as lessor and Vulcan-Cincinnati as lessee by Conrad Magrish, Vulcan-Cincinnati’s attorney. Although Shirley Went-worth signed the agreement between Allstates and Vulcan-Cincinnati, her name does not appear on the 1970 lease.
In 1971, with Vulcan-Cincinnati continuing to operate at a deficit, Wentworth sought financing from the First National Bank of Boston. In 1972, an agreement was executed between Vulcan-Cincinnati, the First National Bank of Boston (hereinafter bank), and the First Capital Corporation of Boston, a wholly owned subsidiary of the bank. Vulcan-Cincinnati received a $300,000 loan from First Capital; in return, First Capital received a five-year promissory note and a stock purchase warrant. A security agreement was made as between Vulcan-Cincinnati and the bank, acting as agent for First Capital. Significantly, all assets of Vulcan-Cincinnati, real and personal, were pledged as collateral. In the wake of this agreement, Vulcan-Cincinnati was solvent until the spring of 1973. Thereafter two attempts at refinancing occurred, with First Capital and Allstates acting as co-guarantors of approximately $295,000 in loans.
In May of 1975, things looked bad for Vulcan-Cincinnati. The corporation owed Allstates approximately $1.1 million and owed $850,000 to general trade creditors. Moreover, it owed the bank $530,000, secured by the February 11, 1972, security agreement, and was in default on these loans. Vulcan-Cincinnati’s employees were terminated, as there were insufficient funds to maintain the payroll. Following that, on May 12, 1975, the bank stepped in and took possession of Vulcan-Cincinnati’s assets.
Charles Rydell, an officer of the bank, was the agent of all secured parties for the purpose of protecting the assets of Vulcan-Cincinnati. Rydell’s highest offer for these assets came from one A. M. Kinney of defendant Process Installations, Inc. On June 2, 1975, an agreement was entered into between the bank, Vulcan-Cincinnati, Allstates, and Process Installations whereby the latter purchased all of Vulcan-Cincinnati’s assets for $75,-000. Pursuant to this agreement, the bank assigned the 1970 lease covering the Northport property to Process Installations. Process Installations also requested, and received, an assignment of this lease to it by Vulcan-Cincinnati. Process Installations then proceeded to occupy the facility at Northport and sent Wentworth a notice of intent to exercise the option to purchase which had been included in the 1970 lease. An anti-assignment clause had also been incorporated in that lease, and Wentworth invoked it in suing for possession of the property.
Following a bench trial, the circuit court con- eluded that the 1970 lease was valid, despite the fact that Shirley Wentworth did not sign the lease and the fact that the property was owned by both plaintiffs as tenants by the entireties. The trial court further found that, despite the anti-assignment clause in the lease, the lease was effectively assigned by operation of law, because it was embraced by the security agreement which had been defaulted on by Vulcan-Cincinnati. An alternative justification advanced by the court for its finding that the lease was legally assigned was that, by pledging the leasehold interest to secure financing for the corporation of which he was chief executive officer, Wentworth had consented to its assignment. The court concluded that defendant Process Installations was properly in possession of the premises. Having resolved the issue of which party was properly entitled to possession of the premises, the trial court turned to the other issue surrounding Process Installations’ purported exercise of the option contained in the lease. This option provided that the purchaser would pay the fair market value of the premises at the time of the exercise of the option. The question before the court was whether this amount would include the value of the buildings constructed by Vulcan-Cincinnati on the leasehold premises during the 1960’s.
The court found that the option was valid despite the fact that Shirley Wentworth did not sign the lease, as under the circumstances Theodore Wentworth acted as the authorized general agent of Shirley Wentworth in signing the lease agreement. Treating the issue as a matter of the intent of the parties at the time the lease was executed, the trial court determined that the buildings and fixtures became part of the lessor’s interest. As a result, the court held that the fair market value for purposes of the option should include both the land and the buildings.
The trial court’s finding that Shirley Wentworth was bound by the terms of the lease executed by Theodore Wentworth was correct. The court noted that she generally left the operation of the North-port property to her husband. Furthermore, although she did not sign the lease, she signed the agreement with the creditors’ committee which extended the term of the lease. This was a definite step toward the lease of the property. See Eadus v Hunter, 249 Mich 190; 228 NW 782 (1930). More nearly on point is Schram v Burt, 111 F2d 557, 562 (CA 6, 1940). That case involved a mortgage, executed by the husband alone, upon property belonging to the husband and wife by the entire-ties. The Schram court would not hold that the husband had authority to enter into a contract on his wife’s behalf merely from the fact of their relationship. However, the court stated: "The contract of the husband is binding upon the wife whenever he is shown to have been invested with the power of a general agent with regard to the management of the property or the subject matter of the contract.”
Thus, because Mr. Wentworth was the general agent for Mrs. Wentworth, who admittedly knew nothing about the business and acquiesced in all of her husband’s business decisions, the trial court correctly concluded that the lease and option were valid.
However, the decisive issue in this appeal is raised by plaintiffs in their cross-appeal. Plaintiffs claim that the anti-assignment clause in the 1970 lease prohibited the assignment to Process Installations without their written consent. We agree. The trial court erred in concluding that the lease hold interest was to be regarded as personalty rather than a real estate interest. With the leasehold interest treated as chattel property, the trial court had no difficulty in upholding the manner in which the bank took over the asset and subsequently assigned it to Process Installations. Crouse v Mitchell, 130 Mich 347; 90 NW 32 (1902), was referred to as procedurally analogous. The trial judge articulated his belief that, if the leasehold was looked upon as real estate, it was not effectively foreclosed upon:
"There was no judicial foreclosure of the lease assignment in issue, and no recognition of the debtor’s exclusive right of possession as part of an equity of redemption pending foreclosure. If the security instrument were viewed as a real estate mortgage, there can be no question that there has been no effective foreclosure.”
It is ironic that the trial court, which relied so extensively on Crouse v Mitchell, seems to have ignored a significant part of it. Construing several statutory provisions, one of which originated two years after the case of Grover v Fox, 36 Mich 453 (1877), relied on by the trial court, the Crouse Court held that a leasehold interest which has an unexpired term which exceeds three years is real estate for the purposes of recording laws and levy procedures. Crouse v Mitchell, supra, pp 356-357. See MCL 600.6057; MSA 27A.6057; MCL 565.35; MSA 26.552.
In Crouse a lessee executed an assignment of his interest in a lease as security for a debt. The first issue before the Court was whether the assignment or pledge of the lease as security in good faith was a violation of a clause in the lease against assignment. The Court decided that the lease was not violated by such an assignment. The second question, regarding which of two mortgages had priority, required the Court to decide, as it did, that the conveyance was such an interest in land as to make the real estate recording laws applicable to it. More critically, it must be noted that the action in Crouse was a bill by the assignees under the security agreement to foreclose a lien upon a leasehold interest. The defendants had argued that the assignment was void as to them, because the leasehold interest was a chattel real, which had to be sold as a personal estate and could only be seized on execution as a chattel interest. The defendants claimed the assignment was, therefore, ineffectual by reason of the failure to file with the city clerk as provided by statute. The Court found that the instrument was properly filed in accordance with the real estate recording laws and held for the plaintiffs.
Although at common law leasehold interests were identified as a chattel real and considered to be personal property, Michigan law recognizes leasehold interests as being a classification of real property. Fidelity Trust Co v Wayne County, 244 Mich 182; 221 NW 111 (1928); Crouse v Mitchell, supra.
Because the leasehold is to be considered real property, and the trial court noted that the leasehold was not properly foreclosed upon, Process Installations did not receive a valid assignment and hence is not properly in possession of the Northport property. Also, because the property was not properly foreclosed upon, the trial court’s alternative finding that Mr. Wentworth impliedly consented to the assignment by using the property as collateral cannot overcome the defective procedures employed by the bank.
In light of the foregoing disposition, we find it necessary to discuss the question of whether the buildings and improvements erected by defendant Vulcan-Cincinnati on the Northport property during the first lease became part of the leased premises when the second lease was executed.
The buildings constructed by Vulcan-Cincinnati were trade fixtures. As defined by this Court in Michigan National Bank, Lansing v Lansing, 96 Mich App 551, 555; 293 NW2d 626 (1980):
"A trade fixture is merely a fixture which has been annexed to leased realty by a lessee for the purpose of enabling him to engage in a business. The trade fixture doctrine permits the lessee, upon termination of the lease, to remove such a fixture from the lessor’s real property.”
As such, the trade fixture is considered to be the personal property of the lessee. A chattel is a trade fixture if devoted to a trade purpose, regardless of its form or size. Waverly Park Amusement Co v Michigan United Traction Co, 197 Mich 92; 163 NW 917 (1917). See also Wycoff v Garriloff Motors, Inc, 362 Mich 582; 107 NW2d 820 (1961).
The policy behind the above postulates, as expressed in Cameron v Oakland County Gas & Oil Co, 277 Mich 442, 552; 269 NW 227 (1936), is significant to the determination of this appeal:
"The right of the tenant to remove the erections made by him in furtherance of the purpose for which the premises were leased is one founded upon public policy and has its foundation in the interest which society has that every person shall be encouraged to make the most beneficial use of his property the circumstances will admit of. * * *
"The reason property of this kind is personal, rather than real, is based upon the rule the law implies an agreement that it shall remain personal property from the fact the lessor contributes nothing thereto and should not be enriched at the expense of his tenant when it was placed upon the real estate of the landlord with his consent. There is no unity of title between the owner of the land and the owner of the structures, and the buildings were not erected as permanent improvements to the real estate, but to aid the lessee or licensee in the use of his interest in the premises.”
Against this background we shall examine the effect of a second lease on the trade fixture doctrine.
Plaintiffs claim that in Kerr v Kingsbury, 39 Mich 150 (1878), the Supreme Court recognized that a new lease set forth a completely new arrangement, effectively terminating whatever rights of removal a tenant had under the original lease. This is incorrect. Under Kerr, continued possession by the lessee maintains, rather than forfeits, his right to retain trade fixtures, provided a renewal lease does not make contrary declarations or a contrary intent is otherwise inferable.
Some confusion in Michigan law was generated by certain language in Waverly Park Amusement Co v Michigan United Traction Co, supra. The facts of that case are so unique and so complex that it is useless to attempt to compare it with the instant case, but the following statements, adopted by the Supreme Court from the lower court opinion, were considered controlling by the trial court:
" 'The rule is different in some of the States, but Michigan does not hold that trade fixtures pass to the landlord or become a part of the realty until the lessee surrenders his right of occupancy, and if that right does not end with one lease, but is continued under renewals by way of new leases, having practically the same kind of tenancy in view, he may wait until his agreed use of such fixtures is near an end and remove his fixtures at any time before the expiration of the leased right of occupancy.’ ” 197 Mich 95-96. (Emphasis supplied.)
While older property law cases are often susceptible to a variety of interpretations, in our opinion a fair reading of these cases indicates that forfeiture is not to be presumed, despite the above reference to "practically the same kind of tenancy”. Recalling the rationale behind the trade .fixture doctrine, as expressed in Cameron v Oakland County Gas & Oil Co, supra, that a lessor should not be enriched at the expense of his tenant, we find the rule of Kerr and Waverly Park to mean that trade fixtures remain the personal property of the lessee as long as the lessee remains in legitimate possession of the property unless: 1) it is expressed or clearly implied in a second lease, executed after the term in which the fixtures were erected, that the fixtures belong to the leasehold, or 2) such a fundamental change in the nature of the tenancy has occurred that it would not unjustly enrich the lessor to include the fixtures as a permanent part of his real property.
It is not disputed that Vulcan-Cincinnati, as successor to Chemical Processes by merger, remained in possession of the property until 1975. The first clause of the 1970 lease following recitations of the parties provides that at least one of the buildings was to be included in the leasehold estate. But Exhibit A of the lease, purporting to be a more complete description of the leased premises, makes no mention of the buildings. Other documents and testimony demonstrate that the intent of the parties was that the buildings and improvements were personal property of the lessee, Vulcan-Cincinnati.
The second part of the Michigan test is whether there was such a significant change in the charac ter of the tenancy that no forfeiture would result from consideration of the buildings as part of the leasehold. This question does not turn on whether or not the 1970 and 1962 leases contained approximately the same terms. The two leases were drafted by two different attorneys and are different in several respects. But it is not dispositive that the second lease does not include a provision allowing the lessee to remove fixtures at the end of the leasehold. For example, in Daly v Simonson, 126 Iowa 716; 102 NW 780 (1905), the tenant did not forfeit his right to remove fixtures reserved to him under the original lease by taking a new lease containing no reservation of the right to remove the fixtures but providing instead that the lessee should protect the buildings and improvements.
Plaintiffs’ best argument in this regard is that, in effect, there was a de facto change of lessees. Prior to execution of the 1970 lease, Theodore Wentworth had been a majority stockholder of Vulcan-Cincinnati; after the 1970 lease Wentworth owned only 35% of the stock in that company. But under the circumstances of this case, we believe that a forfeiture would still occur if the 1970 lease were held to include the buildings as part of the leasehold. The same corporate entity, Vulcan-Cincinnati, was lessee before and after the 1970 lease. As part of the 1970 deal, Allstates gave, and Wentworth received, valuable consideration in exchange for a majority stock position. The new lease was central to this agreement, which, among other consideration, relieved Mr. and Mrs. Went-worth of the debenture guarantee. Moreover, Wentworth was still the chief executive officer of Vulcan-Cincinnati. It is obvious from a reading of the trial transcript of Wentworth’s testimony that he was still intimately involved with Vulcan-Cin cinnati even after his loss of majority stock control. For example, in 1975, with foreclosure by the bank near, Theodore Wentworth was still out looking for fresh capital sources for his company. Taking these circumstances into account, we would conclude that it would be unfair to hold that in 1970 the buildings and improvements suddenly ceased to be the personal property of Vulcan-Cincinnati. The nature of the tenancy simply had not undergone so radical a transformation.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Per Curiam.
Plaintiff’s insured, while intoxicated, struck and injured a bicyclist as a result of which plaintiff paid benefits pursuant to the insurance policy which it had issued. Almost seven years after the accident, plaintiff brought suit under the dramshop act, MCL 436.22; MSA 18.993. The trial court granted summary judgment for the defendant, holding that the plaintiff failed to state a claim against the defendant and that the statute of limitations had run on any claim that the plaintiff might have had. Plaintiff appeals by right.
We have reviewed the briefs and record in this case and find no error. An intoxicated driver’s insurer is not entitled to sue in its own name under the portion of the dramshop act which provides a cause of action for "other persons” injured in person or property. McDaniel v Crapo, 326 Mich 555, 558; 40 NW2d 724 (1950). In McDaniel the insurer was allowed to sue under the dramshop act only because its insured had a cause of action under the act. Here the insured is the intoxicated person himself, and an intoxicated person has no right of action under the act. Scholten v Rhoades, 67 Mich App 736, 742; 242 NW2d 509 (1976). Since we conclude that the insurer of an intoxicated driver has no cause of action under MCL 436.22; MSA 18.993, we need not address the statute of limitations issue.
Affirmed. Defendant may tax costs. | [
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Per Curiam.
On January 30, 1978, defendant pled guilty to two counts of second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to life imprisonment. He appealed as of right. On February 6, 1981, this Court affirmed his conviction but remanded for a resentencing. He was again resentenced to life imprisonment. He again appeals as of right.
Defendant had originally been charged with two counts of felony murder. At defendant’s plea, the following exchange took place:
"Court: If you plead guilty to murder in the second degree and if you do[,] the maximum sentence that you can get is any number of years up to and including life imprisonment. I had some discussion with your counsel and with the prosecutor and your counsel told me that you would prefer, in the event I accept your plea and subject to seeing the probation report, that you be given a straight life sentence in the hopes that you might be eligible for parole at the expiration of ten years. But, that if it was otherwise left to me to sentence you, you might not be eligible for parole for a period of more than ten years. Is that your thinking in the matter?
"Mr. Simmons: Yes, sir.
"Court: And is that why you would like to have a sentence of straight life, is that right?”
On appeal, this Court stated:
"Defendant apparently believed that if he was sentenced to life he would automatically be eligible for parole in ten years, whereas, if he was sentenced to a term of years he might not be eligible for parole for more than ten years.
"Under these statutes, it is clear that even if defendant had been given a long indeterminate sentence he would still have been eligible for parole after ten years. Thus, the judge erred in stating '[I]f it was otherwise left to me to sentence you, you might not be eligible for parole for a period of more than ten years.’ In addition, as defendant points out, [MCL 791.233(b); MSA 28.2303(b)] allowed a person with an indeterminate sentence to be considered for a special parole prior to the expiration of ten years, upon the approval of the sentencing judge. A special parole was not available for those receiving life sentences.
"Since both the trial judge and defense attorney not only misstated but over-valued the consequences to defendant if he accepted the proposed sentence 'bargain’, we remand this case for resentencing.”
Defendant now argues that the second sentenc ing judge erred in giving him life imprisonment. We agree.
People v Cohens, 111 Mich App 788; 314 NW2d 756 (1981), is analogous. There, the defendant was given life imprisonment after pleading guilty to two counts of second-degree murder. The trial judge believed that the defendant would in fact be eligible for parole. However, Proposal B precluded the parole board from ever giving defendant parole. This Court first quoted from People v Penn, 102 Mich App 731, 734; 302 NW2d 298 (1981):
"Where a defendant’s plea is induced by promises of leniency in sentencing, the promise is later broken, 'the conviction will be reversed and the defendant will be allowed to withdraw the plea, or else the promise will be specifically enforced’. People v Nickerson, 96 Mich App 604, 607; 293 NW2d 644 (1980). The same result is required where the record reveals no other reason for a plea than a reduced sentence and where the court clearly intended that a shorter sentence be served.” (Emphasis in original.)
Cohens then ordered specific performance:
"The trial judge and the prosecutor, on appeal, have stated their desire and intent that defendant be sentenced to parolable life terms. Because the Department of Corrections cannot presently honor that intent, defendant’s sentences for second-degree murder are vacated and the case is remanded for resentencing. In order to effectuate the trial court’s intent, defendant may now be resentenced to a minimum of 10 years and a maximum of x number of years greater than 15 and less than life.” 111 Mich App 788, 795.
The trial judge intended to sentence defendant to the more lenient of two possible sentences: life or a term of years. As it turns out, the life sentence was not more lenient than a sentence of a term of years. If defendant is sentenced to a term of years he will be eligible for special parole sooner than if he is sentenced to life imprisonment. Because one of the main reasons for defendant’s pleading guilty was the sentencing concession, we believe that he did not receive his benefit of the bargain at the new sentencing. Therefore, we remand this case for a new sentencing and direct the trial judge to give him a sentence of a term of years.
Reversed and remanded, we do not retain jurisdiction. | [
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Cynar, J.
Defendants appeal by leave granted from the trial court’s entry of an order denying defendants’ motion for summary judgment. Plaintiffs accept the statement of facts as presented in defendants’ brief on appeal*
Plaintiffs filed this action on May 24, 1978. The complaint was first amended on December 11, 1979, and for a second time on June 25, 1980.
The second amended complaint alleges that Lawrence McDonald was the agent and employee of defendants and was under their control, and that the cause of action arises out of the use and operation of a taxicab owned by defendant Checker. Plaintiffs allege that on June 28, 1977, plaintiff Curtis Burch hailed a taxicab which bore the insignia and name of defendant Checker and asked the driver, McDonald, to drive him to his home. After arriving at his home, Burch exited from the taxicab on the curbside and paid his fare plus a tip. He took several steps to walk over the grassy area between the street curb and the sidewalk. When he reached the walkway which is located between the sidewalk and the front door to his home, he was assaulted by McDonald. McDonald beat Burch with an iron bar, pulled off Burch’s pants while Burch was on the ground, and took his pants and their contents. McDonald jumped back into the cab, turned the cab around in the street and backed up over the curb, almost striking Burch.
McDonald was prosecuted for his assault of Burch. He pled guilty to assault with intent to murder and armed robbery and is currently in prison.
Liability against defendants in the second amended complaint is based on allegations in four counts.
Count 1 alleges that the beating suffered by Burch violated the duty of due care owed to Burch by each defendant as a common carrier.
Count 2 alleges that the beating of Burch was an act within the scope of the driver’s employment and, as such, was an act for which defendants are vicariously liable.
Count 3 alleges that, by permitting the driver to use a "Checker Cab”, defendant Checker represented that the driver was its agent and caused Burch to rely upon the driver "as a safe, competent driver who would not harm him”.
Count 4 alleges that defendants owed plaintiffs a duty to hire safe, competent drivers who would not harm Burch and that, by hiring McDonald, defendants violated this duty and that, as an alleged result of defendants’ negligent hiring, retention, and supervision of McDonald, Burch was beaten.
On December 23, 1980, defendants moved for summary judgment under GCR 1963, 117.2, subds (1) and (3). In the motion, defendants stated that McDonald was not an employee of either defendant but, instead, operated the cab pursuant to a lease and that he was an independent contractor.
Defendants alleged that defendant Checker was a Michigan nonprofit corporation whose sole function was to promote and foster the private business of members of the corporation. The motion alleges that the members of Checker, and not defendant Checker, own the taxicabs.
Defendants argued that the assault and battery were outside the scope of McDonald’s employment and that Burch was no longer a passenger at the time of the assault and battery.
Defendants also argued that Circuit Judge James Montante, in an action brought by defendants herein to compel their insurer to defend the instant case and pay for any resulting judgment, stated that the plaintiffs herein had failed to allege a cause of action based on negligent hiring.
Further, in their memorandum of law in support of the motion for summary judgment, defendants argued that the driver was an independent contractor, that the driver acted outside the scope of his employment, that facts were not sufficiently alleged to support a negligent hiring claim, and that a common carrier-passenger relationship did not exist between defendants and Burch at the time of the attack.
The trial judge ruled that plaintiffs pleaded sufficient elements to avoid summary judgment on the claimed negligent hiring and failure to provide a safe, competent driver. Further, there was a question of fact as to whether defendants controlled the driver. Alternatively, there were questions of fact with regard to apparent authority and reliance.
The trial judge ruled that, in situations where agents went beyond the scope of their employment, the employer was still liable under the "apparent authority” doctrine. Finally, the trial judge ruled that there was a question of fact with respect to whether Burch was a passenger at the time of the attack.
It is deemed sufficient to consider the four counts pleaded in the second amended complaint in disposing of this appeal.
Initially, we determine that there is a question of fact as to whether defendants and the driver had an employer-employee or an independent contractor relationship. In Thomas v Checker Cab Co, Inc, 66 Mich App 152, 156; 238 NW2d 558 (1975), lv den 397 Mich 883 (1976), this Court held that proof that Checker "holds itself-out to the public as having control over the operation of 'Checker Cabs’ was sufficient to constitute prima facie showing of an employer-employee relationship between Checker Cab Company and the cab drivers”. We note that the same facts which prompted this Court’s ruling in Thomas are alleged in plaintiffs’ complaint. See Thomas, supra, p 155.
Plaintiffs allege that the beating of Burch by the driver was an act within the scope of the driver’s employment. We disagree.
An employer is liable for the intentional tort of its employee if the tort is committed in the course and within the scope of the employee’s employment. An employer is not liable, however, if the employee does the act while engaged in the employer’s work, but outside of his authority, "as where he steps aside from his employment to gratify some personal animosity or to accomplish some purpose of his own”. Martin v Jones, 302 Mich 355, 358; 4 NW2d 686 (1942), quoting Stone v Sinclair Refining Co, 225 Mich 344, 349; 196 NW 339 (1923).
Summary judgment under GCR 1963, 117.2(1) should only be granted where the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right of recovery. Ken Cowden Chevrolet, Inc v Corts, 112 Mich App 570, 572; 316 NW2d 259 (1982). Summary judgment under GCR 1963, 117.2(3) should only be granted where there is no genuine issue as to any material fact. The court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973).
Although determinations of whether an employee is acting within the scope of his employment are generally for the trier of fact, it is proper to take the case from the jury where it is clear that the employee was acting to accomplish some purpose of his own. See Martin, supra, p 358, where the Supreme Court affirmed the trial judge’s judgment notwithstanding the verdict after finding that "[t]here was no basis on which the jury might find that Jones [the employee] was furthering his master’s interests by shooting plaintiff”.
Plaintiffs argue that a common carrier may be held liable for the tortious conduct of its servants committed outside the scope of employment. While this may be correct, see Johnson v Detroit, Ypsilanti & Ann Arbor Railway, 130 Mich 453, 454; 90 NW 274 (1902), plaintiffs’ cause of action based on respondeat superior is not saved from summary judgment. This is so because liability in Johnson is based on the duty a common carrier owes directly to its passengers to protect them from the wilful acts of its employees while performing the contract to carry and not on vicarious liability for the acts of its employees.
Count 1 states that defendants violated their duty of due care as common carriers. Standing by itself, it would appear defendants are entitled to more specific facts in identifying what duty of due care was violated. Count 4 alleges that defendants violated a duty to hire safe and competent drivers. Count 3 alleges reliance by Burch on representations by "Checker Cab” to hire safe and competent drivers who would not harm Burch.
Defendants argue that they cannot, as a matter of law, be held liable for the breach of their duty as common carriers because Burch had left the cab and, therefore, was not a passenger. A person’s status as a passenger of a street car or automobile continues "until he has safely stepped therefrom and had a reasonable opportunity to leave the place at which he alights”. 13 CJS, Carriers, § 565, p 1073. See, also, Boyle v Waters, 199 Mich 478, 481-483; 166 NW 114 (1917). Burch was not injured by the manner in which the cab was driven or in the process of alighting from the cab. The cab ride had ended. Burch had exited from the vehicle and had reached the sidewalk to his home. There was no indication that he intended to return to the cab. An assault such as that involved in the present case is in contrast to one perpetrated while in the performance of the contract to carry a passenger. See Johnson, supra. The assault, instead, arose solely out of the cab driver’s personal motivations. We conclude that Burch was not a passenger at the time he was attacked.
There are genuine questions as to whether defendants were common carriers and whether the relationship was one of employer-employee or independent contractor. Whatever the relationship was or whether Burch was or was not a passenger is not decisive. The complaint sets forth sufficient averments to reasonably inform defendants of the nature of the negligent hiring claim. Counts 1 and 4 appear to be based on defendants’ negligent hiring, retention, and supervision of the driver. Counts 1 and 4 survive the summary judgment motion because a question is sufficiently presented as to whether defendants knew or should have known of the driver’s dangerous propensities. Count 3 is based on the duty of "Checker Cab” to provide safe drivers, and it is essentially identical to counts 1 and 4, which are based on negligent hiring.
Regarding the standard of care owed by carriers to passengers to prevent assaults by its employees, there is an indication that carriers might be held to a higher standard in the hiring of their employees than other employers. See 13 CJS, Carriers, § 691, p 1281. Such a standard may involve a requirement that carriers investigate prospective employees to determine whether they are dangerous, a requirement which has not been imposed on other employers. See Bradley v Stevens, 329 Mich 556, 561-562; 46 NW2d 382 (1951); Tyus v Booth, 64 Mich App 88, 92-93; 235 NW2d 69 (1975).
We affirm the trial court’s denial of summary judgment with respect to counts 1, 3, and 4 but reverse and direct the trial court to enter summary judgment with respect to count 2.
The trial court has certified five "controlling questions of law”:
"1. Is the question of an employer-employee or a principal-agent relationship one of fact under these circumstances for the trier of facts to decide, such that a genuine issue as to that fact precludes summary judgment pursuant to GCR 1963, 117.2(3)?
"2. Is the theory of vicarious liability applicable in the relationship between an alleged principal and agent involves apparent authority that is evidenced by certain trademarks, slogans, or other publicly known indicia of control associated with the principal, so that where facts are pled supporting that theory a sufficient legal claim is stated which would withstand a motion for summary judgment?
"3. Is a valid legal claim of negligent hiring pled, sufficient to withstand a motion for summary judgment, where the complaint alleges that the defendants negligently hired McDonald as their agent and failed to provide the public with a safe and competent driver?
"4. Is the duty of a common carrier to its passenger to deliver him to a place of safety extended beyond the moment the passenger leaves the carrier when the driver of the carrier transforms, by his actions, the place of safety into a place of danger?
"5. Is the tortious conduct of a driver of a common carrier to a passenger of that carrier within the scope of his apparent authority or employment as a driver of the common carrier?”
Defendants submit the following issues in their brief:
"I. Did a question of fact exist as to whether an employer-employee relationship existed between defendants and the cab driver or as to whether defendants are estopped from arguing that the driver was an independent contractor because defendants held themselves out as the driver’s employer, thus rendering defendants vicariously liable if the driver was acting within the scope of his employment?
"II. Does a question of fact exist with respect to whether the driver was acting beyond the scope of his employment in assaulting and robbing plaintiff?
"III. Did plaintiffs raise a question of fact with respect to whether plaintiff was a passenger, thus creating a possibility of liability on the part of defendants for breach of its duty as a common carrier, where plaintiffs allege that defendants’ driver assaulted plaintiff a few seconds after plaintiff had left the taxicab?
"IV. Did plaintiffs allege sufficient facts to plead a cause of action for negligent hiring, retention and supervision, where they allege that, by negligently hiring the driver, defendants breached the duty to hire and employ only safe, competent drivers who would not harm their passengers?” | [
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Per Curiam.
Following a jury trial in Detroit Recorder’s Court, the defendant, Edward Doss, was convicted of delivery of heroin, MCL 333.7401; MSA 14.15(7401). On April 21, 1980, he was sentenced to 10 to 20 years imprisonment. The defendant appeals as of right, raising several issues for our consideration.
I
First, we reject the defendant’s claim that, because his conviction was based largely upon circumstantial evidence, the prosecution was bound to disprove all theories consistent with innocence. People v Edgar, 75 Mich App 467; 255 NW2d 648 (1977). In People v Davenport, 39 Mich App 252, 256; 197 NW2d 521 (1972), the Court stated that:
"[W]here the People’s case is based on circumstantial evidence the prosecution has the burden of proving 'that there is no innocent theory which will, without violation of reason, accord with the facts’.”
This oft-cited rule does not require the prosecutor to specifically disprove all innocent theories, rather:
"It should be sufficient if the prosecution proves its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defense may produce.” Edgar, supra, p 474.
II
Second, the defendant contends that the trial court committed reversible error by informing the jury that a defense witness had failed to appear at trial. At trial, during the presentation of the defendant’s case, defense counsel informed the court that her client was ill and would ;not be able to proceed with the trial. The court then inquired of counsel as to whether she intended to call any more witnesses. Upon learning that defendant’s next witness had not yet appeared, the court adjourned for the day, informing the jury:
"The Court: Members of the jury there is another witness that the defense notified to appear here today to testify. However, the witness has not appeared. I have waited, we are waiting for the witness to appear and that witness has not appeared. I have consented to give the defense until tomorrow morning to locate the witness and bring the witness down here. This matter will be adjourned until tomorrow morning at 9 o’clock. Come back tomorrow at 9 and we should be able to finish. Don’t forget, don’t talk about the case. The matter is adjourned until tomorrow morning at 9 a.m.”
The defendant contends, for the first time on appeal, that these comments had the effect of discrediting this witness as they insinuated she failed to act as a good citizen. The defendant’s failure to object to the comments bars appellate review unless it appears that the comments " 'were of such a nature as to unduly influence the jury and, thereby, deprive the appellant of his right to a fair and impartial trial’ ”. People v Rogers, 60 Mich App 652, 657; 233 NW2d 8 (1975), citing People v Wilson, 21 Mich App 36, 37; 174 NW2d 914 (1969). It does not appear to this Court that the trial court’s comments impugned the credibility of the witness, People v Wichman, 15 Mich App 110; 166 NW2d 298 (1968), or displayed partiality which would have influenced the jury to the detriment of the defendant’s case. Further, it does not seem that the trial court was doing anything other than explaining to the jury the reason for the adjournment of the trial. It is the opinion of this Court that the defendant was not denied his right to a fair trial by the trial judge’s statement, and, therefore, the defendant’s claim on this issue is rejected.
Ill
Next, the defendant claims, for the first time on appeal, that the sentencing court improperly considered inaccurate information in the presentence report that the defendant had been charged with prison escape.
This Court will not review an alleged error in a presentence report unless a record thereof is made before the sentencing judge. People v Herndon, 98 Mich App 668, 674; 296 NW2d 333 (1980). In the case at bar, although the defendant was given an opportunity, pursuant to GCR 1963, 785.12, to inspect the presentence report and explain or controvert its contents, he offered no objection to its contents. This Court has held that:
"[R]eference to other criminal activity, for which no conviction resulted, may be included in the presentence report and considered by the court, provided the defendant does have the opportunity for refutation provided by GCR 1963, 785.12. This is consistent with the Federal standards of due process set forth in Williams v New York [337 US 241; 69 S Ct 1079; 93 L Ed 1337 (1948)] and the decisions from other states.”
People v McIntosh, 62 Mich App 422, 446; 234 NW2d 157 (1975), rev’d on other grounds 400 Mich 1; 252 NW2d 779 (1977). See also People v Books, 95 Mich App 500; 291 NW2d 94 (1980). In the case at bar, the defendant had an opportunity to refute the contents of the presentence report, and, therefore, we cannot conclude that the trial court erred in considering this information. Moreover, an examination of the record reveals that the defendant’s alleged escape from prison was not a factor in the court’s determination of sentence. Rather, this information was considered only with regard to whether the defendant’s sentence would run concurrently with, or consecutively to, his previous sentence for armed robbery.
IV
The defendant next argues that the trial court’s instructions on aiding and abetting mandates reversal. We note first that the defendant did not object to the instruction at trial, when any errors could have been easily resolved. In fact, defense counsel expressly approved the instruction. "Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.” People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969). Thus, under the general rule, appellate review is precluded.
Despite counsel’s failure to object, appellate review is possible if the error alleged would result in a miscarriage of justice. People v Trammell, 70 Mich App 351; 247 NW2d 311 (1976). An erroneous "intent” instruction would result in a miscarriage of justice. See People v Townes, 391 Mich 578, 593-594; 218 NW2d 136 (1974). A careful review of the trial court’s instructions, however, reveals no error. The court did not read the standard criminal jury instructions on this issue. Still, use of the standard instructions is not mandated, and failure to use them is not per se reversible error. People v Turner, 99 Mich App 733, 739; 298 NW2d 848 (1980) , rev’d on other grounds 411 Mich 897, 1037 (1981) . An instruction will be upheld if it accurately states the law. The court’s instructions must be read together and not in misleading bits and pieces. People v McFadden, 73 Mich App 232, 237; 251 NW2d 297 (1977). A reading of the trial court’s instructions shows no error. The court instructed the jury of the intent required to deliver heroin:
"This information charges the defendant as, I said, with delivery. It does not make any difference whether the defendant delivered the heroin to Mr. Grimmett. If you believe that he, in fact, believe beyond a reasonable doubt that he did deliver the heroin to Mr. Grimmett, if you find from the evidence you believe beyond a reasonable doubt that the defendant Doss delivered the heroin to Mr. Grimmett that is a violation of this statute. On the other hand if you believe from the evidence, it shows you beyond a reasonable doubt that the defendant, that Mr. Grimmett delivered the heroin to Mr. Thompson and Mr. Doss was an active participant in the delivery of that heroin you are satified [sic] beyond a reasonable doubt that he was an active participant then he would be guilty of this offense. If you were not satisfied that, that is from the proofs, he neither delivered the heroin to Mr. Grimmett and did not take an active part of the delivery by Mr. Grimmett to the officer Thompson he would not be guilty. Delivery means that the defendant transferred heroin to another person knowing that the heroin was — knowing that the substance was heroin and intended to so deliver it to that person.
"Alright, possible verdict is as follows: If you find from the evidence that the people have prove [sic] to you beyond a reasonable doubt that the defendant, Edward Doss, did deliver heroin, that is he delivered it to Mr. Grimmett or participated in delivering it to Mr. Curlie Thompson, if you find the evidence satisfies you beyond a reasonable doubt that he did that then he is guilty of the charge. If on the other hand you feel the people failed to prove to you beyond a reasonable doubt that Mr. Doss did deliver heroin to Mr. Grimmett, nor did he participate in the delivery by Mr. Grimmett to Mr. Thompson your verdict should be not guilty.” (Emphasis added.)
The defendant argues that this instruction permitted a guilty verdict on the basis of mere presence during the delivery. It is obvious, however, that the instruction required "active participation” and not just presence. The instruction clearly required the jury to find that the defendant had the specific intent to deliver heroin. If the trial court must be faulted, it is for omitting language which would allow a conviction for "supporting” or "encouraging” the delivery without the more active physical participation the court required. This "error” works for the defendant, not against him, and thus cannot form the basis for reversal.
V
The fifth issue concerns the sufficiency of the evidence presented at trial. We find the evidence sufficient to support the conviction. A sale took place in which an undercover officer bought drugs from a middleman. The middleman gave the defendant the money, which had been marked. The deal was delayed until the defendant arrived at the apartment. When the sale was concluded, the defendant left. Afterwards, when officers identified themselves the defendant attempted to flee. From this testimony a reasonable jury could find guilt.
VI
In his second supplemental brief, the defendant argues that he should be resentenced. In sentencing the defendant, the judge stated:
"The Court: It is the sentence of this court that you be confined to a place designated by the Michigan Corrections Commission for a period of not less than 10 years or more than 20, sentence to run concurrently, if possible, with the present sentence you are serving for armed robbery. ” (Emphasis added.)
A concurrent sentence was not possible, though, because the crime was committed while the defendant was an escaped prisoner. Because the trial court misunderstood this point, we are remanding for resentencing with an updated presentence report.
Affirmed and remanded for resentencing.
"GCR 1963, 516.2 requires that a party object to an allegedly erroneous jury instruction before the jury retires, as a prerequisite to raising the issue on appeal. A similar requirement is contained in MCLA 768.29; MSA 28.1052. This Court has held that where no objection is raised to alleged errors in jury instructions the verdict will not be set aside unless the omissions or error have resulted in a miscarriage of justice. People v Trammell, 70 Mich App 351; 247 NW2d 311 (1976). Moreover, this Court will not find that a miscarriage of justice has occurred unless the incorrect instruction pertains to a basic and controlling issue in the case.” People v Sherman Hall, 77 Mich App 456, 462; 258 NW2d 517 (1977), lv den 402 Mich 909 (1978).
See CJI 8:1:01, 8:1:02, 8:1:03,12:2:03.
GCR 1963, 516.6; Administrative Orders 1977-1,1978-5.
People v Cammarata, 257 Mich 60, 66; 240 NW 14 (1932).
People v Mauch, 23 Mich App 723; 179 NW2d 184 (1970), lv den 384 Mich 765 (1970). | [
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Danhof, C.J.
Defendant appeals as of right from an order of the trial court entered February 16, 1982, adjudicating him in contempt of court for failure to make child support payments previously ordered by the court and ordering him to pay the arrearage within 10 days or to spend 120 days in jail.
Defendant discontinued making child support payments in October, 1981, instead paying the money into an escrow account which he had estab lished. He claimed that he was justified in discontinuing support payments because plaintiff refused to permit him to visit their child. The trial court ruled that defendant could not unilaterally terminate his obligation for support. The court ruled that, because no request had been made of the court to terminate or modify the child support order, defendant was bound to comply with that order and that his failure to do so warranted a finding of contempt.
The general rule in Michigan is that support payments may be suspended when the noncustodial parent is wrongfully denied visitation rights unless suspension of those payments would adversely affect the children for whose benefit the payments are made. McLauchlin v McLauchlin, 372 Mich 275, 277; 125 NW2d 867 (1964).
In the present case, the record does not support defendant’s claim that plaintiff engaged in a course of conduct designed to frustrate his visitation rights. See Chazen v Chazen, 107 Mich App 485; 309 NW2d 612 (1981). On the contrary, it appears that the real reason defendant discontinued making support payments was because he was dissatisfied with an earlier order of the trial court which limited visitation in a manner with which he disagreed. That order provided that visitation was to take place in plaintiff’s home. It was subsequently modified to permit outside visitation if the child agreed to the same. It appears that it was at the child’s request that visitation was so limited. Although we sympathize with defendant’s plight, we are compelled to follow the holding of another panel of this Court in Henshaw v Henshaw, 83 Mich App 68, 72-73; 268 NW2d 289 (1978):
"We hold that support payments may not be used as a weapon to force a child’s visitation.
"Affection is bestowed, not bought. Family relations cannot be regulated by the clock. Obviously, any coerced companionship the defendant might compel by a cutoff of child support would be utterly devoid of the sentiments of filial love and respect whose encouragement furnished the only admissible ground for visitation in the first place.”
The fact that his daughter did not care to see him was not sufficient justification for defendant to discontinue support.
We also find without merit defendant’s claim that plaintiff agreed to waive these payments. We agree with the trial court that plaintiff’s statement that she had adequate funds to provide for the child’s needs until the custody dispute was resolvéd served only as an explanation concerning why she had failed to initiate these contempt proceedings. It was not intended as a waiver of the child’s right to support.
Defendant’s final claim is that he can only be required to tender payment of his child support obligation in the form of gold and silver coin currently in circulation. In support of his claim, defendant relies on US Const, art I, § 10, which provides in pertinent part:
"No State shall * * * make any Thing but gold and silver Coin a Tender in Payment of Debts.”
In our opinion, the above-quoted provision was only intended to limit the states’ ability to create a form of legal tender other than gold or silver coin. It was not intended to preclude the state from requiring that payment of debts be made in any form of tender authorized by the federal government.
US Const, art I, § 8, grants Congress the exclusive power to declare what shall be legal tender for the payment of all debts. In 31 USC 392, Congress has provided the following:
"All coins and currencies of the United States (including Federal Reserve notes and circulating notes of Federal Reserve banks and national banking associations), regardless of when coined or issued, shall be legal tender for all debts, public and private, public charges, taxes, duties, and dues.”
Furthermore, 31 USC 463 provides:
"(a) Every provision contained in or made with respect to any obligation which purports to give the obligee a right to require payment in gold or a particular kind of coin or currency, or in an amount in money of the United States measured thereby, is declared to be against public policy; and no such provision shall be contained in or made with respect to any obligation hereafter incurred. Every obligation, heretofore or hereafter incurred, whether or not any such provision is contained therein or made with respect thereto, shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts. Any such provision contained in any law authorizing obligations to be issued by or under authority of the United States, is hereby repealed, but the repeal of any such provision shall not invalidate any other provision or authority contained in such law.
"(b) As used in this section, the term 'obligation’ means an obligation (including every obligation of and to the United States, excepting currency) payable in money of the United States; and the . term 'coin or currency’ means coin or currency of the United States, including Federal Reserve notes and circulating notes of Federal Reserve banks and national banking associations.”
In Norman v Baltimore & O R Co, 294 US 240, 303; 55 S Ct 407; 79 L Ed 885 (1935), the United States Supreme Court held:
"The broad and comprehensive national authority over the subjects of revenue, finance, and currency is derived from the aggregate of the powers granted to the Congress, embracing the powers to lay and collect taxes, to borrow money, to regulate commerce with foreign nations and among the several states, to coin money, regulate the value thereof, and of foreign coin, and fix the standards of weights and measures, and the added express power 'to make all laws which shall be necessary and proper for carrying into execution’ the other enumerated powers. Juilliard v Greenman, 110 US 421, 439, 440; 4 S Ct 122; 28 L Ed 204 (1884).
"The Constitution 'was designed to provide the same currency, having a uniform legal value in all the States.’ It was for that reason that the power to regulate the value of money was conferred upon the federal government, while the same power, as well as the power to emit bills of credit, was withdrawn from the states. The states cannot declare what shall be money, or regulate its value. Whatever power there is over the currency is vested in the Congress.”
See also United States v Wangrud, 533 F2d 495 (CA 9, 1976), cert den 429 US 818; 97 S Ct 64; 50 L Ed 2d 79 (1976).
In view of the foregoing, it is clear that the federal government is given the exclusive power to make legal tender and that the Supremacy Clause of the United States Constitution, US Const, art VI, requires the state to accept tender so made. For similar results in other jurisdictions see Radue v Zanaty, 293 Ala 585; 308 S2d 242 (1975); Allen v Craig, 1 Kan App 2d 301; 564 P2d 552 (1977); Chermack v Bjornson, 302 Minn 213; 223 NW2d 659 (1974); Middlebrook v Mississippi State Tax Comm, 387 S2d 726 (Miss, 1980); Dorgan v Kouba, 274 NW2d 167 (ND, 1978); Leitch v State Dep’t of Revenue, 16 Or App 627; 519 P2d 1045 (1974); Trohimovich v Director, Dep’t of Labor & Industry, 21 Wash App 243; 584 P2d 467 (1978). See also OAG, 1981-1982, No 5934 (July 15, 1981). Defendant’s claim is rejected.
Defendant has also briefed an issue concerning an order issued January 11, 1982, which modified an earlier visitation order. No claim of appeal was filed from that order nor has defendant provided this Court with transcripts of hearings held with respect thereto. Therefore, that issue is not properly before this Court. GCR 1963, 803.1. If defendant desires to pursue that claim, he must apply for leave to appeal to this Court. GCR 1963, 803.3; Queen Airmotive, Inc v Dep’t of Treasury, 105 Mich App 231, 239; 306 NW2d 461 (1981).
Affirmed. | [
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Cooley, C. J.
The plaintiff sues to recover for the services of himself as keeper, and his wife as matron, of the Wayne County almshouse, for the year succeeding October 1, 1882. The case was sent to a referee, who found that the plaintiff and his wife were first employed in the capacities mentioned for one year, commencing August, 17, 1877, “at a salary of eight hundred dollars per annum; ” that the employment was continued after the expiration of the year, to September 30, 1878, and was then renewed by formal resolution of the board, for another year; that on September 30, 1879, it was again renewed for another year in the same way, and at the end of that year for still another year. At the end of the year 1881 plaintiff and his wife continued in service on an oral understanding with the board that they should do so, and on January 4, 1882, a formal resolution of the board was adopted, continuing their employment for the year ending September 30, 1882.
About the middle of September, 1882, plaintiff met two of the three superintendents, and stated to them that there were rumors of changes to be made, and as the year was nearly over he desired to know whether he would be wanted another year; that if he was not wanted another year he desired to leave when the year was up ; that both his houses and his farm were occupied, and he would'want to make his arrangements so as not to move his family in the winter. Mr. McDonald, one of the superintendents, said in the pres ence of Shanahan, the other, that'he had heard nothing about any change, being made, but as the board was not full that day it was best to let the matter lie over until they were all present, and he would then bring the matter up; that he did not suppose there would be any change, and plaintiff was to go on as he had done; that if there was any change they would let him know by the first of October. All this was said by McDonald in good faith, and in the belief that no change was intended. He supposed he was speaking the wishes of all the members of the board, but did not understand he was making a contract. The other member of the board heard this conversation, but said nothing. Plaintiff and his wife thereupon continued in the service, and. were not in any manner notified their services were not desired for another year until January 3, 1883, when the board by formal resolution appointed other persons to the positions respectively, and notified plaintiff that the employment of himself and his wife would terminate on February 1,1883. In the mean time no dissatisfaction had been expressed with either of them. They left the almshouse at the time notified, but under protest that the salary would be claimed for the year. The referee found facts showing special damage to the plaintiff by reason of the employment being thus terminated. As conclusions' of law he found the following:
“It was competent for two Of the said superintendents, without an authorization -of the board at a formal meeting, to enter into a valid contract which would be binding upon the corporate body, for the employment of a keeper, or a keeper and matron, of the said almshouse.
The facts fail to establish an express contract on the part of the said superintendents for the hiring of the plaintiff as keeper for the year next ensuing October'1,1882. The said conversation between plaintiff and said McDonald and Shanahan did not make any express contract between the parties.
No contract or undertaking on the part of the said superintendents arises, by implication of law, from all the circumstances and facts above found and set forth, to continue the employment of plaintiff for another term from and after October 1, 1882.”
Upon these findings judgment 'was rendered for the defendants, and plaintiff assigns error.
The referee’s conclusions of law are correct so far as they go, but they do not cover the ease. It is very evident that no express contract of hiring for another- year was entered into. It is also true that the law will not imply a contract from the facts stated. But when the question is whether parties, by oral Communication and by their acts, have entered into a contract-the conclusion tobe deduced is not one of law but of fact, and must be determined as such. The contract itself, if there is one, is a fact, to be arrived at on a consideration of other facts; and if there is any evidence tending to prove it, must be found like any other fact, by a jury, or by the court acting in the place of a jury.
There weré in this case some very strong facts tending to the proof of a contract, though they were not conclusive. Plaintiff appears to have understood that his employment was to continue for another year, and he perhaps had a right under the circumstances to suppose the members of the board understood it in the same Way. But the significance of their acts we cannot pass upon here. It would seem they did not understand they had done what would amount to a renewal of the employment; but if their acts were such as fairly to lead the plaintiff to understand he was again employed, a jury may perhaps imply a contract to that effect.
The case closely resembles Tallon v. Mining Co. ante, p. 147, decided at the present term, and we think that case rules it. A new trial must be ordered.
The other Justices concurred. | [
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] |
Campbell, J.
Plaintiffs in April, 1884, severally recovered judgments against defendant George W. Tyler and certain other parties who were indorsers on his individual notes, for the aggregate in four judgments of $1653.67. Executions were issued and simultaneously levied on George W. Tyler’s farm in Clinton county, being the east half of the northeast fractional quarter and the southwest quarter of tlm northeast quarter of section 2 in town 8 north, of range 4 west, containing about 170 acres. The suits were begun in January, 1884, and on March 11, 1884, George W. Tyler, who was married and living on his land, mortgaged, without his wife’s signature and with intentional concealment from her, all of this land to his brother, the defendant Melvin J. Tyler, for $7000 payable at the end of five years, with interest annually. This property, it is alleged, was so mortgaged in fraud of complainants, and the bill is filed in aid of execution. The court below dismissed it’, but we are not informed on what ground. It seems to be assumed that it was on the merits.
There are some preliminary questions which it is proper-to refer to. It is suggested that the other parties defendant in the judgments should be brought in, and also that it does not appear that they have not property to satisfy the claims. If this had been a judgment creditor’s bill to reach equitable assets, founded on inability to get redress at law, these objections might need consideration. But here the complainants have found property which they propose to reach at law, and which it is proper, if they can make out their case, to exhaust before seeking equitable assets. The judgments are not upon any joint liability of the several defendants at law, and are onl}'- obtained under our peculiar statute which allows maker and indorsers to be sued together, but does not require it, or place them on the footing of ordinary joint debtors. No one but the judgment debtor principal has any interest in this land beyond , what Melvin J. Tylér has as mortgagee. There was no occasion to implead them.
Neither is there a misjoinder of complainants. These complainants are interested collectively and ratably in the levy which the bill is filed to aid, and they represent all of such interests. There is no rule of equity which precludes their joinder. On the contrary it might be open to question whether -they are not in any event necessary parties complainant or defendant. They are certainly proper co-complainants.
The question then comes down to the single inquiry, whether the mortgage is fraudulent against complainants.
It appears that defendants are brothers, living four or five miles apart; George being about forty-nine years old and Melvin four years older. George has a wife and family, and has, since he went upon his farm, improved it considerably and put up valuable buildings, large and well built; and it is worth about $10,000, and was subject at tbe time of these transactions to a mortgage of $2200. He had a growing wheat crop, and had upon the farm a considerable amount of farming stock and implements. He was apparently a prosperous and well-to-do farmer.
Some time before the mortgage to his brother was given and before these suits were brought, and soon after the notes matured, George had conversation with complainant Shaver, whom he visited to confer about his debt, and complainant recommended him to raise money by mortgage so as not to be bothered by notes occasionally coming due. George told him he had this farm, worth eight or ten thousand dollars, which was subject to the $2200 mortgage, and that if he had» $2500 he could square all his indebtedness, and could get along with enough to make $4500, including the existing mortgage. George gives a somewhat different version, claiming he did not say this was all his indebtedness; but complainant is corroborated, and we have no doubt he was given to understand so. Complainant introduced him to some men having money to lend, but he did not get the loan he wanted and would not take less.
On March 11, 1884, he made two mortgages to Melvin, one of $7000 on the farm, and one of $1200 on the wheat crop, which was seventy acres. He had already given a mortgage on the moveable property on the farm, to Melvin, a short time before. This mortgage is not produced and its date and conditions do not appear. He also conveyed by deed absolute his interest in a mill which was subject to his mother’s life-estate.
The consideration for these transactions is claimed to be a series of notes of various amounts, beginning in 1862 and ending in 1880, upon which at this time Melvin was anxious to get security. It appears that under some arrangement between the brothers, Melvin took these notes to a neighbor, Mr. Sunderlin, and got him to compute the whole amount due for principal and interest. Mr. Sunderlin figured it up and informed the parties. The principal, according to his recollection, was something less than $4000, and the aggre gate principal and interest was $S220. The paper containing this figuring was not produced, and neither of defendants can give any statement of the size and other essentials of the notes. The sum was divided so as to put $7000 on the land and $1200 on the wheat. The mortgages were not drawn up by Mr. Sunderlin. These securities and transfers covered the whole of George’s property,' and apparently absorbed it.
It appears from the testimony of Melvin that he did not wish George’s wife to know anything about these matters, and that the existence of the debt had been purposely concealed from her, although she is shown to have been informed of the other debts against her husband.
All of this debt, if existing, except one note the amount of which is not given accurately, but not over $700, was outlawed, and some of it dated back’ piore than twenty years. The account given by defendants is that Melvin advanced to George from time to time small sums, and took due-bills; that after a while they would meet and have a settlement, and George would give a note running for one year on interest, and in this way all the notes originated. It is claimed that during all this period there never was any money paid to Melvin, who himself incurred some debts on his own account, while George went on in apparent prosperity, building to the amount of some $5000, and living in such a way as to create no suspicion in his family or elsewhere, that he was under any debt whatever beyond what was public and within his means. And as already mentioned, he not only got credit as such, but a few months before these arrangements declared that he was not so indebted.
Under all these circumstances it is claimed for the defense that Melvin must be treated as a bona fide creditor and incumbrancer, and that complainants must lose all remedy against their debtor, who, according to this showing, has been insolvent all along for years, while he has appeared to be perfectly good, and whose apparently prosperous condition, if fictitious, is due to the intentional concealment from his family, if not from the public, of the brother now appearing as creditor.
If such a claim can be maintained against the honest creditors who have acted on these appearances, it is so unjust, and so difficult of scrutiny by any but the two interested parties, that it requires strict proof to entitle it to any consideration. It cannot be regarded as having the same meritQrious basis as the claim of a wife who has lent money to her husband, which, in the usual order of harmonious married life she would seldom be expected to press by hostile remedies, and could not, therefore, be suspected of wrong in delaying. There may be among friends and kinsmen a great amount of similar lenity, but it certainly is not so common as to exempt those who run such risks from showing their rights very clearly when they are seeking, after long delay, to get the better of other creditors.
In the present case there are several peculiarities that render it very inequitable to prefer the defendant Melvin’s mortgage, and which indicate that this security would never have been heard of if the debt had been intended to be pressed as between the parties. And there is a lack of explanation which is due to their action in destroying testimony, which, whether from good or bad motives, is a very serious matter here.
It appears in the first place that most of the debt had been outlawed for several years, and that only a small portion was in force, if any. It appears and is avowed that the existence of any portion of this claim, which originated more than twenty-two years ago, had been successfully concealed from the family of George, and there is nothing to indicate that it was known during this long period to anybody else. The effect of this, apart from enabling George to obtain false credit, was, if the debts existed and were renewed, to render his estate insolvent, and to leave no inheritance to his heirs, and no personalty to the widow. But if not renewed, the death of George would have left all his creditors secure, and given a considerable balance to his family. It becomes, therefore, of some importance to know whether it was understood that these alleged advances were regarded as actually existing debts in good faith.
One of the strongest reasons for doubting it is that no precautions were taken against loss by failure to keep the debts renewed. Death, at least, was among the possibilities of so long a period, and would have cut them off. But it appears directly that defendant Melvin, if we have all the facts and are to accept his statements as full, did on several occasions call for and obtain what he calls settlements. These consisted in consolidating, small due-bills into single notes, payable in one year from date. It is not easy to understand how this should have been done without including in the settlement notes of all the previous paper outstanding, and especially such as was running out. Such would be the natural course if there was really any desire to obtain a settlement. If this was done, instead of all these notes being valid, the later ones would have been renewal notes superseding the others. The only .other natural course would have been to obtain written renewals on the old notes. Not only was this not done, but it-does not appear that during the preparations for getting the new securities now in litigation any step was taken to obtain a temporary written acknowledgment, although we are asked to believe that there was an actual pressure brought to bear on George.
It was therefore very desirable, at least, that in ■ a controversy which it is manifest both of them were anticipating, these original notes should be kept in existence to furnish evidence of the consideration of the securities. Had there been no likelihood of litigation, a careless man might destroy such vouchers, instead of canceling them. But they were all destroyed, when other creditors were suing, and we have no testimony which even tends to show the exact date or terms of any of them. Mr. Sunderlin testifies to making calculations from papers that appeared to be old and worn, but his attention was not called to anything which would determine their genuineness, and his calculation was also destroyed, or at least is not produced.
Furthermore, it appears that a chattel mortgage, which is not produced, was made on the farm personalty before this final calculation, and does not appear to have been taken into the account in arranging the amount of these latter securities, which were made to cover the whole debt. And there is no-explanation given by defendants, although there is by Snnderlin, why, after obtaining what was made in the shape of a security, au absolute conveyance was given of the title to all or an undivided part of a mill property, which is talked of as if it were a contingent interest of no special account, when in fact it was a vested estate, subject only to the life-estate of the mother of defendants.
There are also some other remarkable facts. When Sunderlin was spoken to about the securities, it is shown that he suggested the necessity of getting the wife’s release, and that Melvin objected to doing so, and said that he would rather suffer some loss. In this connection Sunderlin advised him to get the mill property. It is not claimed that any price was put on it or any credit given for it. JBut the first chattel mortgage covered exempt property, which the husband could’ not mortgage without the wife’s assent, and-the farm was a homestead, on which, so far as the homestead right extended, the land mortgage was absolutely void without the wife’s signature. It is impossible that in any genuine arrangements-between debtor and creditor for security such facts could have been overlooked. When asked on cross-examination-why he took all of his brother’s estate, the defendant Melvin answered : “ I ain’t took it yet, have I ? ” which was a singular answer if he was really intending to enforce a claim which he professed, at least, to suppose would exhaust everything.
All of these circumstances indicate that the transaction which was nominally hostile was really friendly, and intended to protect George’s family or himself from creditors. It was-but a short time since George had asserted that his unsecured debts did not exceed $2500. He had been openly endeavoring to obtain a further loan on that basis. It was only after his failure to do this, and the prospect of impending judgments- and levies, that the interests of Melvin come to the surface, and he appears as pressing claims which had ceased to be-legally collectible. It is impossible from this record to believe that these old demands would ever have been heard of if there had not been danger that George’s property would be sold to pay his debts. He distinctly acknowledged this, as shown by the testimony of what appears to be a credible witness. The facts indicate it quite as clearly.
If the notes did not represent actual debts to their full amocmt, then there was a gross fraud in fact. If it was understood that the debts, if ever existing, were to be considered as outlawed, and so extinguished, and the condition of George was purposely allowed to appear in good credit, it is open to doubt, at least, whether a subsequent renewal should give them preference over active creditors. But in this case no one can doubt that the purpose of both these defendants was to defeat the judgment creditors, and was not in good faith to secure existing debts. In our opinion, the defendants have given no satisfactory proof that there was anything in existence which was, as between them, regarded as a binding-obligation. And we also think that these securities were-really designed to protect George and not to secure Melvin as a creditor.
We think that the mortgage should be declared void as against the levy in question, and that the complainants should have the relief prayed.
The decree should be reversed with costs of both courts and a new decree entered accordingly.
The other Justices concurred. | [
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] |
Cooley, C. J.
The Attorney General very properly declines to support the conviction in this case.
The prosecution was for adultery, and could only have been instituted on the complaint of respondent’s wife. How. Stat. § 9279. The wife made complaint, but afterwards filed a paper in court stating that she was overpersuaded to make it; that she would not have made it had she not been urged to do so; that she made it against her own feelings and-wishes; “ that she has three little boys of whom the oldest is only seven years of age, and that for the sake of her children and her own peace and happiness she most respectfully asks that Madison Dalrymple may be discharged and that said cause may be discontinued.” Notwithstanding this request the prosecuting attorney pressed the.case to a conviction.
Perhaps the letter of the statute was not disregarded in this action, but its spirit was. The conviction must be set aside, and the respondent discharged.
The other Justices concurred. | [
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Sherwood, J.
This case is an action of replevin for a horse. The plaintiff claims to be the owner of the horse, and that he lent him to the defendant. The defendant claims in like manner to be the owner, and says he bought the horse, with other property, of the plaintiff. The question of ownership was submitted to the jury, and they found for the plaintiff. The verdict was general, and the judgment must stand unless the court erred to the prejudice of the defendant in his rulings upon the trial. An inspection of the record has failed to convince us that any such error was committed.
Eight errors are assigned. The first is without force. The defendant insists that upon the testimony the verdict should have been for the defendant. The evidence was conflicting and the case at the close of the trial was one beyond question for the jury.
Plaintiff was plaintiff in another suit between the parties, wherein his attorneys had, by mistake in filing a bill of particulars, included as an item the value of the horse replevied as set-off. On rebuttal, the plaintiff was permitted to show this error. This is the defendant’s second assignment of error. The ruling was entirely proper. The explanation removed the effect sought to be given to this piece of evidence.
It appears from the testimony that the horse in question, while defendant had him, was stolen, and when the parties were in pursuit of him the plaintiff introduced the defendant to the deputy sheriff of Montcalm county as the owner of the horse. The defendant’s counsel asked that the court instruct the jury that they might take into consideration the statement of plaintiff in introducing the defendant as an admission of ownership — that the statement should be con sidered as an admission that the horse was defendant’s ; and that the statement was not denied by plaintiff.
The court charged the jury that the credibility of the testimony was for them to determine; that in determining the question which of the parties was the owner of the horse, they should consider all the testimony in the case, and allow full weight to that which they believed to be true, and be governed in their decision by the preponderance of the evidence. This charge covers the whole ground correctly, and disposes of the errors assigned upon defendant’s first, second and third requests to charge.
The testimony upon which defendant’s fourth request was based, as already stated, was fully explained by the plaintiff; and the action taken by his attorneys, under the circumstances, in the other case, was not an election to proceed in assumpsit for his claim, and the request was properly refused. We do not think the question made in defendant’s fifth request arises upon the testimony in this case, and the request was properly refused. The record shows the defendant claims the ownership of the horse through a purchase from the plaintiff, and the latter testified to his ownership of the horse, and that he never sold him, but lent him to the defendant. This is a denial of the defendant’s ownership, and shows the defendant’s exception to the charge of the court, contained in the last assignment of error, not well taken.
The charge of the court was unexceptionable, and the judgment must be affirmed.
The other Justices concurred.
This assignment of error was based upon the judge’s suggestion of a denial, in charging the jury that they must consider the statements made as to who the owner was, and the denial of the same. | [
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Campbell, J.
Plaintiffs, who are private bankers, sued defendants jointly on several notés signed with defendants’ partnership name of J. T. Pepple & Co. Wilcox defended on the ground that the notes were given without his assent for private obligations and purposes of Pepple, and that ’plaintiffs did not take them in ignorance of their purpose. The verdict below was in his favor. Judgment was rendered agairfst Pepple alone; who has not appealed. Plaintiffs bring error.
The first error assigned is that on such a claim alleged as a partnership liability there could be no judgment against Pepple alone. We need not consider how this would be if Pepple had complained of it, although we do not wish to be understood as suggesting any impropriety in it. It cannot, hurt plaintiffs to have a sole judgment against Pepple if they cannot hold Wilcox; and there can be no ground of error for any such reason on their behalf. Some of the other errors assigned are not urged, and we shall confine ourselves to such as are urged, and these are the only substantial questions raised.
Complaint is made that plaintiffs were not allowed to inquire into the extent of Pepple’s private means, and to show they were all locked up in the firm. We are not sure that this error is well founded in fact on the record, but assuming it to be so, it is not sustainable. The liability of the firm could only be created for firm purposes, or such as were by the creditor presumably firm purposes; and a partner who has no means is not, for that reason, entitled to use partnership means for his own purposes. The inquiry was foreign to the issue.
Objection is also made to the admission of certain book entries on defendants’ ledger. If the record showed what those entries were, we might consider them; but it cannot be assumed that all such entries were incompetent, and we cannot presume that these were.
The assignments from the 6th to the 10th cover the same ground. They were all based on objections to questions addressed to and answered by Wilcox as to whether Pepple had any actual authority to use the firm name in these cases apart from any implied authority which might be claimed, and whether Wilcox knew of or acquiesced in them. All of these matters were proper for consideration, and it was not error to allow this testimony to be gone into. We can see no objection to the form of the questions concerning authority. If it was desired, as of course it was proper, to infer authority from particular acts indicating it, yet it cannot be improper to ask the distinct question subject, to full cross-examination. Usually, agency is a simple question of fact, although it may in some cases be less plain of solution than in others.
The 11th and 12th assignments do not seem to be relied on, unless so far as they may have been touched under other assignments. ,
The 13th relates to a refusal by the court to strike out an answer in which Pepple had stated that a draft on him personally had been discounted by plaintiffs. The objection urged on the argument was that there was no evidence that plaintiffs knew that one of the notes given in the firm name was given to take up Pepple’s personal paper. However this may have been before this question was answered, there was such testimony subsequently given by the same witness, and the objection resolves itself into one touching the mere order of proof, and is not material. If, when made, the ground for it had been the same now urged, there could have been no difficulty in showing the competency of the inquiry. The question of notice was never lost sight of.
The requests to charge asked the court to charge that all but two notes had no origin in the indebtedness of Pepple individually, and that plaintiffs ought to recover on those, unless the jury found they were not for partnership purposes or dealings. This the court could not properly have charged as requested, because there were facts to be passed upon by the jury. And the jury were, in our opinion, sufficiently instructed as to the test of recovery on all of them. The 15th request asked a charge which, we think, the record does not warrant as to the absence of evidence of notice of the purpose of one of the notes specified. We think there was testimony bearing on that subject.
Neither was there error in charging that if the notes were given without Wilcox’s knowledge or assent, and did not pertain to firm business, and were without consideration to the firm, and were taken by plaintiffs for a private debt due by Pepple to them, there could be no recovery. This is a simple and familiar rule of law.
. We find no error in the record, and the judgment should be affirmed. ■ . -
The other Justices concurred. | [
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] |
Cooley, C. J.
This is an action ,of replevin, brought under How. Stat. ch. 289, for cattle distrained by the defendant. Under the statute the questions to be determined in such an action are — first, whether the cattle were lawfully distrained; and if so, then second, what damages the defendant distraining them is entitled to. The first question was decided in favor of the defendant, and he recovered his damages. The plaintiff brings error.
On the trial the plaintiff insisted that defendant had not distrained the cattle at all, but had taken them up as estrays under chapter 60 of the same Compilation. The ground for this claim is that defendant, on finding the cattle trespassing on his premises, proceeded to impound them, and then caused a description to be entered on the town book and a notice to be given to a justice of the peace, as is required by said chapter 60 in case of cattle taken up for being unlawfully at large. R is claimed that by these acts the defendant elected to treat the case as one arising under that chapter.
If the plaintiff is right in this position, it would seem that he has misconceived his own action, which is expressly grounded on a case of distraining under the other statute. But waiving this point, we think there is nothing in the other. It clearly appeared in the case that defendant, from the first, claimed to have taken up the cattle damage feasant, and he so told the plaintiff when the latter went and demanded them. Entering the cattle on the town book and notifying the justice were acts that could harm no one, and they could not therefore be considered acts of estoppel. They were probably done before the statutes had been carefully examined; but in the light of other facts which show that defendant was all the while claiming to have distrained the cattle for damage done, they cannot be considered as constituting an election to proceed against them as estrays. They were, under the circumstances, merely nugatory acts, and the judge was right in so regarding them.
It clearly appeared that the distraining was lawful. Possibly a question might have been made whether the right of the defendant had been kept good under "the statute; but we cannot, on this record, go beyond a review of the questions actually passed upon by the circuit judge.
We find no error in his rulings and
The judgment must be affirmed.
The other Justices concurred. | [
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Campbell, J.
Plaintiff sued defendant on an acceptance ;given for wire purchased by the latter, and its correctness was not disputed. The defense was by way of set-off and ¡arose out of an alleged transaction whereby defendant, who ■had a license to make 251 tons of patent barbed-wire fencing, agreed with plaintiff that the latter should furnish plain wire •at the lowest market price and have it made into barbed fencing and sell it and divide the profits, collecting the ¡stipulated royalty from the purchasers. One item consisted •of royalty actually collected from a purchaser, which plaintiff refunded, and defendant was himself obliged to advance to the patentee. The jury found in favor of defendant’s set-off, and plaintiff brings error.
Several of the errors assigned depend on similar principles and may be dealt with together. Considerable time was spent in the argument upon the supposed immateriality of •certain testimony based on the claim that the plaintiff was not engaged in making barbed wire, and its officers did not ¡bind it by dealings on that footing. We can see no .force in this claim. There can be no legal presumption that plaintiff was not authorized by its charter to enter into any branch of business connected with the wire industry. And if this is ¡so, then the action of the president and secretary must be presumed valid. The exhibits to which objection was made, signed by the plaintiff’s officers, are in our opinion very clearly corporate and not private acts and statements, and furnish the plainest evidence of the dealings set up by •defendant. They are certainly material if the business could .lawfully be done, and of this we have no doubt.
It is unfortunate that the witnesses are so directly at variance upon the facts, but these documents corroborate strongly defendant’s showing and were properly received for that, purpose. And they bore directly in some instances on questions of price and value.
The objection that defendant did not appear to have sufficient acquaintance with values seems to us unfounded. His knowledge is clearly shown.
The item of royalty refunded was we think a proper charge, and is shown by one of the exhibits. The testimony of defendant shows, if believed (and the jury believed it), that the plaintiff agreed to collect the royalty on all sales, and that the right to use the patent involved this, royalty. When they collected it they became responsible for it as money had and received, which is a proper basis of set-off. Whatever may be the case of a mere failure to collect, upon a defense of set-off, money actually received is within the rule. And it was competent, although perhaps not necessary, for defendant to show that he himself paid the royalty out of his own money. If he paid too much (of which we find no evidence), it was a matter easily computed. But the testimony was properly before the jury.
We do not think there was any error in striking out answers to written interrogatories which, from the whole deposition, were evidently based on hearsay. Taking the entire answers into account we think this defect appears.. Neither can we see what legitimate effect the testimony could have which relates to an alleged division of profits out of business of another corporation. It was properly open to testimony to determine between the disputing witnesses whether the contract was made by one or another'company. But this must be done by witnesses having knowledge. As the interrogatories do not appear, we cannot assume that the witnesses were legitimately called on to answer as they did concerning these profits; and the answers, even if called for, are too vague to be of any value as evidence. But we do not see their relevancy.
The court did not neglect to charge upon any of the mat ters brought to its attention by plaintiff’s requests, so far as appropriate, and the charges given covered the whole ground and were in accordance with the views before referred to. Some criticism is made on the reference by the court to a particular sum of money for allowance, as an interference with the province of the jury. But a reference to the charge •shows that the jury received full instructions as to their own duty, and that the remark in question was given merely by way of illustration, and from abundant caution they were told not to accept it for any other purpose. The charge was clear and very fair in all respects.
There is no error in the record, and the judgment must be affirmed.
The other Justices concurred.
The exhibits consisted of statements of amounts due for manufactured wire and of correspondence between the parties relating thereto. These •documents were sometimes signed with the name of the company .and that of the secretary was added with his title, and sometimes only by his name or initial. | [
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Ohamplin, J.
This suit was commenced on the 24th day of February, 1879. It was brought to recover as damages the amount agreed to be paid by the terms of the following agreement:
“$100.00. Dundee; Mich., Oct. 4, 1871.
For the purpose of promoting and aiding the construction of the Toledo, Ann Arbor & Northern Railroad, and in consideration of the benefits to be derived therefrom, I do hereby pledge and agree to pay to the order of the Toledo, Ann Arbor & Northern Railroad Company the sum of one hundred dollars, payable in six months after the first cars run over the road from Ann Arbor to Toledo. Payable on or before the above time specified, without interest.
Miles B. Johnson.”
The declaration avers that jilaintiff has become, by assignment, transfer and delivery previous to the commencement of suit, the sole owner of the said contract, and all rights and benefits growing out of the same; avers that all the conditions in said contract have been fulfilled on the part of the said road and its assigns, and that the cars did run over said road six months previous to the commencement of this suit. The defendant pleaded the general issue, and gave notice of the statute of limitations; also that the contract declared on was obtained by the fraudulent representations of the agent of the Toledo, Ann Arbor & Northern Railroad Company, and also that the Toledo, Ann Arbor efe Northern Railroad Company was not, on the 4th day of October, 1871,. a corporation under the laws of this State, and has never been at any time since. The case was once before in this Court, and is reported in 49 Mich. 148.
The corporation named in the contract commenced to build the road, but before completion it was declared bankrupt in tbe district court of the United States for the Eastern distinct of Michigan, in proceedings instituted for that purpose, and E. D. Bhnne was appointed its assignee. To prove title to the contract declared on, plaintiff offered in evidence a certified copy of a deed from the assignee in bankruptcy to Benjamin P. Crane. This was objected to for the reason that the record of a deed is not made by law evidence of the sale or conveyance of personal property, and because the said deed does not describe the contract in question or purport to convey i.t. Plaintiff then offered testimony tending to show that such a deed had been executed but had been lost, and showed by the deputy register of deeds that he recorded said deed and compared it with the record, and that the record was a true copy of said deed; and thereupon the court overruled the objection and admitted the certified copy of the deed in evidence. The plaintiff then offered a similar record of a similar conveyance from Crane to James M. Ashley, which was admitted against defendant’s objection.
This ruling of the circuit judge constitutes the ground of the defendant’s first and second exceptions. The testimony was admissible. It was material for the plaintiff to show that it had succeeded to the rights and franchises of the Toledo, Ann Arbor & Northern Bailroad Company, and had furnished the consideration upon which defendant’s promise was based, and the deeds were competent for this purpose. Although the certified copies of the deeds would not be competent evidence that the contract in question was conveyed by them, yet they were competent and admissible evidence to show that the plaintiff- was a proper person to perform 'the contract on the part of the promisee, as having succeeded to its franchises, rights and interests, and might in legal contemplation be said to be a proper party to perform it. The franchises and other property of the Toledo, Ann Arbor & Northern Eailroad Company were sold under a decree of the court of bankruptcy to Benjamin P„ Crane, and a conveyance was made by the assignee to him on the 6th day of October, 1815. Crane made no attempt to organize a railroad corporation, but on the 9th day of June, 1877, sold and conveyed all tlie property, assets and franchises so purchased by him to James M. Ashley, of Toledo, Ohio, who on the 23d day of November, 1877, filed with the Secretary of State a declaration of incorporation; and plaintiff claims that.this declaration was filed in pursuance of and was authorized by section 2 of Article I of Act 198 of the Session Laws of 1873.
The plaintiff also gave evidence tending to prove that the contract in question was assigned and delivered to Kinne under the proceedings in bankruptcy; that Kinne sold and delivered it to Benjamin P. Crane; that Crane sold and delivered it to James Ashley; and that Ashley sold and delivered it to plaintiff. This testimony was independent of the several deeds before mentioned, and was sufficient to create an equitable assignment of the contract and to authorize the plaintiff as equitable assignee, to maintain a suit upon if in its own name. How. Stat. § 7344; Cook v. Bell 18 Mich. 387; Draper v. Fletcher 26 Mich. 154. Plaintiff also showed that at the time this suit was commenced it was a corporation doing business in this State.
The plaintiff then gave evidence tending to show demand by the plaintiff upon the defendant for the sum claimed by the plaintiff upon said contract, after the road had been in operation six xnonths from Ann Ai’bor to the State line and city of Toledo, in Ohio, and that the payee named in said contract expended about twenty per cent, of its capital stock in grading and preparing the line of the road and in the purchase of ties, before it was declared bankrupt, and that the road as finally built from the State line to Ann Arbor, was constructed by plaintiff upon the identical line as originally ' surveyed and located by the Toledo, Ann Arbor & Northern Railroad Company, and was coxnpleted on the 18th day of May, 1878, and that the said road has since been and now is operated as a railroad between said points, and on the 8th day of July thereafter commenced running regular trains of cai-s over the entire road between Toledo and Ann Arbor, and doing a regular freight and -passenger business, and at the time of the beginning of this suit, and for some time before, the plaintiff was doing business in Michigan as a railroad corporation, running cars in. that name under the laws of the State of Michigan.
The defendant introduced in evidence a certified copy of the articles of incorporation of the Toledo, Ann Arbor & Northern Railroad Company, dated the 23d day of October, 1869, and filed in the office of the Secretary of State on the 26th day of November, 1869. The termini named in the articles were “some point on the line of the states of Ohio and Michigan, in the county of Monroe, at or near the northern terminus of the Toledo & Northern Railroad” and Owosso, in Shiawassee county. We do not consider it necessary to discuss the question of the legality or regularity of the incorporation of the plaintiff. As was stated when this case was before this Court on a former occasion, such question could not be raised between these parties, and could only be inquired of by the State. The question is not an open one since the rulings of this Court in the cases of Toledo & Ann Arbor R. R. Co. v. Johnson, 49 Mich. 148; Wilcox v. Toledo etc. R. R. Co. 43 Mich. 584; Detroit, L. & L. M. R. R. Co. v. Starnes 38 Mich. 698; Michigan M. & C. R. R. Co. v. Bacon 33 Mich. 467.
This record shows that plaintiff has attempted to organize under the laws of this State as a corporation, and was acting as such at the time of the commencement of this suit, and was then the owner of the contract in question. It claimed to have performed the conditions incumbent on the Toledo, Ann Arbor & Northern Railroad Company to be performed, to entitle such company or its assignee to recover the amount payable thereon. This was not a personal contract which could be performed by the Toledo, Ann Arbor & Northern Railroad .Company only. It contemplates a transfer of the contract. The agreement is to pay to the order of the company. The object was to aid the construction of the Toledo, Ann Arbor & Northern Railroad, and the consideration is stated therein to bq the benefits to be derived therefrom. No.w-it is claimed by defendant that the consideration for the promise is the construction of the whole line of road named in its articles, and that the plaintiff has not shown performance in this respect, and' therefore it cannot recover. The contract however, must be construed as a whole, and the agreement is to pay on or before six months from the time the first cars run over the road from Ann Arbor to Toledo. This shows that payment was not to be deferred until the whole line was completed. It would seem to be immaterial to. defendant what railroad company actually constructed the road, .so long as it was done substantially upon the line adopted by the company named; the benefits derived from its construction would be the same whether built by one company or ‘another. Michigan Midland & Canada Ry. Co. v. Bacon 33 Mich. 466; Stevens v. Corbitt id. 458; Detroit, L. & L. M. Ry. Co. v. Starnes 38 Mich. 698.
It is also claimed by defendant that as the contract is silent as to the time the first cars should run over the road from Ann Arbor to Toledo, the law implies that they should commence to be run in a reasonable, time; and that he had a right to introduce evidence before the jury of the situation of the railroad company, and of the statements of the parties who obtained the contract in question at the time it was entered into, as to what had been done and was being done toward the completion of the road, as bearing upon the question of reasonable time within which the contract should be performed. The testimony was properly excluded. The defendant’s agreement was to pay on or before six months after the first cars ran over the road from Ann Arbor to Toledo, and he could not be compelled to pay before that event should happen. If he had wished to limit the time beyond which his liability would not extend, he should have incorporated it in the contract. The same kind of testimony was offered in the case of Stange v. Wilson 17 Mich. 342, and for a like purpose, and what was there said upon the subject renders a fiirther discussion unnecessary.
It appeared upon the cross-examination of one of plaintiff’s witnesses that any assets he might get out of the contract in suit he would hand over to the T oledo, Ann Arbor & Grand Trunk Kail way Company. The defendant’s cdun sel then asked the witness: “ How did the Toledo, Ann Arbor & Grand Trunk Railway Co. get that note or contract ?” The court inquired how that was material. The defendant’s counsel stated that he presumed it was material in this way: that the Toledo & Ann Arbor Railroad Company are not entitled to recover unless they have the paper. The court excluded the testimony. The testimony was irrelevant to the issue and was rightly excluded. The proof was that the contract belonged to.plaintiff at the time suit was commenced. It was produced upon the trial and read in evidence, and a transfer subsequent to bringing suit in a court of law for breach of the contract did not abate the suit or affect the issue. At plaintiff’s request the court charged the jury that the contract declared on was the property of the plaintiff at the time this suit was commenced, to-wit, on the 24th of February, 1879. It is claimed by defendant’s counsel that this charge was erroneous; that the court usurped the functions of the jury; and that the question of ownership at the time of the commencement of suit should have been left to them to decide. The evidence upon this point was all in one direction. There was no conflicting evidence whatever upon it, and the fact was fully proved. There was nothing to be left to the jury upon the facts covered by the instruction, and there was no error in this part of the charge.
The remaining errors assigned are so fully covered by the previous decisions of this Court above cited that a further consideration of them is unnecessary.
The judgment is affirmed.
The other Justices concurred. | [
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] |
Sherwood, J.
The plaintiff rented his building in East Saginaw to the defendant for a saloon, agreeing to take as rent thereior one-half of the profits made by the defendant in the business carried on in the building, the same to be paid weekly. The defendant carried on the business under this arrangement about eleven months, and on refusing to settle with the plaintiff at that time or pay the balance of the rents claimed by the plaintiff to be due him on the contract, plaintiff brought this suit to recover therefor, and oil the trial at the circuit before a jury obtained a verdict for $300. The case is before us for review on error, the bill of exceptions containing all the testimony given in the case.
The principal question presented is, did the agreement for the pay for the use of plaintiff’s building constitute the parties partners. If it did not, then of course the compensation promised, if any accrued under the contract, was to be rent, and the amount thereof depended upon the extent of the profits of the business.
It is evident from the testimony that the parties had no intention of carrying on the saloon business together. The defendant desired to do that alone, but wanted the plaintiff’s building to do it in. It was from the saloon business that the profits, if any, were expected to arise. The parties had no mutual interest in the capital invested, — the capital belonged exclusively to the defendant, and there was no stipulation for mutual loss. It is true the profits, if any, were to be divided; not however as proceeds of a joint venture by the parties, but to ascertain what amount of the proceeds of the individual enterprise carried on by the defendant would indicate the rent to be paid for the use of the building. There is nothing in the contract tending to show the parties understood it as constituting a partnership between them, and this is an action between the parties, — one in which their intention, when ascertained, should prevail.
Sharing profits, while always competent testimony in such cases, is not invaluably a test of partnership. In this case it was a mere arrangement to determine the rental value of the plaintiff’s real estate, and the profits are only referred to for that purpose. The plaintiff had no control whatever over them.
Courts are not called upon when construing contracts, to abrogate or make them for the parties, but when- required, to ascertain their provisions and enforce them. It seems quite clear to us that no contract of partnership existed between these parties, and the plaintiff was entitled to pursue the remedy he has to make his claim.
These views dispose of most of the questions raised-in the case. It was necessary for the plaintiff to make some showing of the profits of the defendant’s business in order to establish his claim and the extent of the same, and we think the testimony offered in that direction and the rulings of the circuit judge relating thereto were all correct.
In determining the profits of the business the court instructed the jury they should first ascertain the gross receipts and the stock on hand at its cost price, less its depreciation, and deduct therefrom the expenditures and the debts. This we think was right, and not subject to the objections taken.
We find no error in the rulings or charge of the circuit judge and
The judgment must be affirmed.
The other Justices concurred. | [
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Cooley, C. J.
The respondent was tried and has been convicted of the murder of Alonzo E. Bullard, who at the time was a policeman of the City of Detroit.
The following is a condensed statement of the facts developed on the trial.
On Wednesday November 27, 1883, the respondent was residing on Canfield street, Detroit, near Wabash avenue. At about six o’clock in the evening of that day he had or pretended to have an errand at the grocery store of one Heise a little distance from his house on the avenue, and went out to attend to it. Arriving at the store, according to his story, he saw Heise standing at the door-way absorbed in conversation with another person. A barrel of oil was in front of the store, and it occurred .to the respondent that he might roll it away without being observed. He had been drinking, and his subsequent claim was that he proposed to himself the rolling off of the barrel by way of joke merely. He did roll it away without at the time being observed, and put it in his own front yard, where he left it until bed-time. He then rolled it into a shed attached to the house, and locked the door.
In the morning the respondent, who was a painter by trade, started out ostensibly to procure work, but found his way after a time to the Russell House, where after noon he was in the company of Freeman, the baggage-master of the hotel, who was an acquaintance. Heise in the mean time had missed his barrel of oil. The barrel was painted a light blue color, and it was easily traced on the stones where it had been rolled. The loss was reported to the Police Department, and officer Bullard proceeded with Heise to investigate. They followed the trail to respondent’s place, and looking through the cracks in the shed, saw the barrel there, which Heise thought he identified as his own. Bullard then knocked at the door of the house which was opened by Mrs. Wilson, and the officer asked of her permission to go into the shed. She said it was locked and her husband had the key, and it wmuld be necessary to wait until he returned, which would be between six anS seven at night. Bullard said, All right; he would be back at that time, — and went away. Heise was then sent off for a search-warrant, which was obtained and delivered to officer Bendall of the police force, who proceeded with it to respondent’s place, meeting Bullard there about half-past three. Bendall called on Mrs. Wilson and said to her he had a search-warrant for a barrel of oil, and it would save a good deal of trouble if she would give it up._ She repeated that her husband had the key to the shed and they must wait for his return, but they declining to do this, she went and got a number of keys for them to try in the lock. None of them fitted it, and she then went to the bed-room and brought one from there, with which the door of the shed was opened and the barrel found partly covered with rubbish. Mrs. "Wilson began to cry? and said if her .husband had taken anything it was only for “ devilment ” and she would give it up. Bendall then turned the barrel over to Heise, and inquired of Mrs. Wilson where her husband worked, and she replied, as he says, that he was a painter by trade and worked^ for Godfrey & Dean, and added that he was not the man most to blame; it was George Smith. Bullard and Heise then started off to procure a warrant, and Bendall went to Godfrey & Dean’s for respondent. On making inquiry he found respondent did not work there, and he then went back to the neighborhood of respondent’s house, and waited about there until about five o’clock.
When the officers left respondent’s place Mrs. Wilson started out to find her husband. She went immediately to the Bussell Plouse, where she saw Freeman and asked him where respondent was. Freeman said he had been there just a little while before with Hughes, and he would send Hughes out for him. He did so, and respondent soon came in. Mrs. Wilson told him what had taken place at the house, and urged him to go home and see about it. He said he would go home bye and bye, and when she urged that he go with her, he declined, and sent Hughes. When they got to the house, Hughes threw off his coat and said he should • make himself a?home. In a little while officer Bendall came in, bringing with him officer Bullard, who had come back, but without bringing a warrant of arrest. Bendall asked Mrs. Wilson why she had told him her husband worked at Godfrey & Dean’s, and she replied she thought he did. Hughes was then observed by the officers, neither of whom knew Wilson' though he had been described to them, and Bendall said, “Mrs. Wilson, who is this man here?” Bendall says, she replied it was her husband; and he then inquired of the man if his name was George Wilson, and .the man replied it was. Bendall then told him he had a warrant for him for the larceny of a barrel of oil. Mrs. Wilson in her testimony denies having said Hughes was her husband, but admits that the officers were led to suppose he was, and they arrested him as the thief and started off with him. On the street, when they got a good view of Hughes, the officers saw he was a much older man than respondent had been represented to be, and Bendall said to him “You are not George Wilson.” Hughes replied, “I never said I was.” ■Some angry words then passed, and Hughes was turned loose. Bendall then, who was Bullard’s superior officer, told the latter to hang around until about seven o’clock, and if Wilson did not come in the mean time, to then go to the station-house.
On the Monday preceding these occurrences, respondent had made arrangements with George Smith to cross the river to Canada with him for duck-shooting. On Wednesday he went up to his house a little before six o’clock, and proposed to start off at once on this expedition. His wife wanted him to see about the oil, but he made light of what she said. He had been drinking, and claimed afterwards to have, been intoxicated. He had a loaded gun in the house, and with this he started off, bidding his wife and babe goodbye at the door. Bullard had been watching the house, and had seen respondent go in, and started to arrest him. He ■came up to respondent almost immediately after he left the house, and made attempt to arrest him. Exactly what words passed between the parties can only be known from the ante-mortem statements of Bullard, and the testimony of the respondent. Quite a number of persons, however, heard -the discharge of a gun, which is not disputed to have been the fowling-piece in respondent’s hands, followed almost immediately by three lighter discharges, which were from a pistol in the hands of Bullard. ^Respondent claimed that Bullard fired four times — once before he fired, and three times afterwards — but there is no supporting evidence for this ■except that when Bullard’s pistol was found, there were ■empty shells in all the four barrels, and some witnesses testified that all the barrels had the appearance of having been recently discharged.
Respondent ran off after the shooting, and Bullard was found by people who came up, to be dying from a mortal wound in the abdomen. He stated to a number of persons that lie was shot by respondent whom he was endeavoring to arrest. Respondent after the shooting went off and found Smith, and proposed to go then for their hunt. Smith assented, and they went to the river at the foot of Campan avenue. Instead of taking the ferry they followed up the river to Hamtramck, where Wilson procured a row-boat, and they crossed the river. When they got over into Canada, respondent for the first time told Smith about the shooting, and Smith then declined to go with him further and turned about and re-crossed the river. Respondent went on alone, and went to the farm of one Caldwell. The next day was-Thanksgiving day. The morning Detroit papers contained an account of the shooting and death of the officer, naming respondent as the murderer, and stating that a reward was-offered for his apprehension. A copy of one of the papers was seen by a man at Caldwell’s, who handed it to respondent. Respondent read it without much remark. Soon after officers from Detroit were seen coming, and respondent ran and hid himself in the barn. Officer Fitzpatrick followed, found and arrested him. Officer Swartwood while he was in custody undertook to inflict violence upon him, but this-■was prevented by others. Respondent consented to be taken back to Detroit, and he was so taken back immediately. Meantime his wife had been taken to the police station where she remained a number of days without complaint being made against her. Proceedings being then taken for her release, a formal complaint was made but though she was-further detained on this, it was not followed up.
A great number of exceptions were taken to the rulings-of the Recorder on the trial, and they have been argued in this Court with much earnestness and ability. They begin with exceptions to the latitude allowed to the counsel for the People in making his opening statement of the case, and they were interposed at nearly every stage in the proceedings. Such of them as appear to us to require attention will be noticed in their order.
I. The complaint of the latitude permitted to the prosecuting officer in his opening has no just foundation. That officer himself might with more reason have protested' against the interruptions to which he was subjected while he was stating the case which he expected to prove.
Since the decision of the case of Scripps v. Reilly 38 Mich. 10, an impression seems to have prevailed with some members of the bar that the opening statements of counsel might be challenged step by step, and questions of relevancy and materiality of evidence raised and considered and even argued at length, bn counsel stating what he proposed to prove. Under this impression the practice of interrupting counsel and demanding the judgment of the court on the competency of what he proposed to show has in some cases been carried to extraordinary lengths, and elaborate arguments had been indulged in over the question whether counsel should be sufered to make certain statements of proposed evidence to the jury. Any such a practice is a great abuse, and in a desperate criminal case might be resorted to for the purpose of defeating the ends of justice, by breaking the force of a connected statement of the case to the jury, and by prolonging the trial until the trouble and expense should dishearten the authorities and result in a relaxation of effort for conviction. The cases must be rare in which counsel would be justified in interrupting the opening of his antagonist to raise questions of competency; and when he does so, the questions ought to be disposed of summarily and without argument. Only a very clear case of abuse would justify the court in interrupting and restricting the counsel’s opening: Porter v. Throop 47 Mich. 313; and no such case of abuse appears in this record. The prosecution as we have no doubt, stated in good faith what it was expected to prove; and we discover no indication of a purpose to drag in irrelevant or incompetent matter with a view improperly to influence the jury. At .the saíne time, in view of what has been said of the abuse of interruption, it is proper to add that there is no indication of want of good faith on the part of the defense in this case in raising the questions as they did.
II. Freeman, the baggage-master of the Bussell House, was examined as a witness for the People, and while on the stand was shown a gun-case which it already appeared was the case belonging to the gun with which Bullard was shot. He was. aske'd if that was respondent’s gun-case, and replied that he did not know; he had never seen it in Wilson’s house or possession, but he had seen a gun-case looking like it in his own baggage-room. . Under objection by the defense he was permitted to say further that there was a gun-case lying around there in the baggage-room a good while that looked like that, and he did not know what became of it nor whose it was until a few weeks before, when Mr. Hopkins turned up.
When respondent took the stand on his own behalf he was asked on cross-examination how long he had had the gun and case in his possession. The question was objected to, but allowed, and he replied, about two months. He was further asked where he found them, and replied, they were handed to him. He refused to tell by whom they were handed to him, and the court declined to compel ,him to do so. Hopkins was subsequently called by the prosecution, and was allowed, under objection, to state that he was familiar with that kind of a gun, and to explain its working to the jury.
The objections of the defense were upon the ground that the prosecution were seeking to create a prejudice against the defendant, by giving evidence which tended to show that he was guilty of another offense, namely, the offense of stealing the gun. But no evidence of a larceny of the gun was given. A suspicion that the gun was stolen from the Bussell House might arise from the testimony of Freeman and the refusal of the defendant to tell from whom he obtained it; but it would be no more than a suspicion. There could-be no. eri;or in the prosecution proving, or attempting to prove the facts from which the suspicion would arise unless they were irrelevant to the charge of murder, and we cannot say that they were clearly so. It might have been important to show when and where respondent procured the gun, and also to show its workings.
In liis summing up the prosecuting officer alluded to the fact that the respondent when questioned about the ownership of the gun put himself on his privilege and declined to state. The remark was objected to, and was not followed up. It would have been more proper to have abstained from making it, but the remark affords no sufficient ground for disturbing the verdict.
III. All the evidence for the prosecution tended to show that four shots were fired and four only; the first shot being from the gun. Respondent claimed in his testimony that Bullard fired first; and if so, five shots must have been fired. In support of this theory evidence was given by the defense that all four of the chambers of Bullard’s pistol appeared to have been recently discharged. When the prosecution took the case in rebuttal they were allowed to show that though all four of the chambers showed they had been discharged, three of them had the appearance of having been discharged more recently than the other. This evidence was objected to as improper at that stage of the case. It was said, and truly said, that the prosecution covered that ground in making their ease at the outset; and that this evidence was not in any sense rebutting. But it does not follow that the-court committed error in receiving the testimony. The admission of evidence out of strict order is commonly in the discretion •of the court; and it has repeatedly been held to be so in cases like the present. Detroit &c. R. Co. v. Van Steinburg 17 Mich. 99; Danielson v. Dyckman 26 Mich. 169; Somerville v. Richards 37 Mich. 299; Brown v. Marshall 47 Mich. 576.
IY. The error most strongly relied upon relates to the ruling •of the court upon the arrest. The arrest was made without warrant; and if the officer had no right to make it, resistance to it must have been legal. The Recorder instructed the jury us follows:
“ If a barrel of oil had been stolen from Ileise, a felony had been committed, and if the defendant was a thief, Bullard had a right to arrest him without a warrant. He would also have the same- right although no larceny in fact had been committed, if there was reasonable ground and probable cause for believing that a larceny had been committed, and that the defendant was the guilty party. Any facts which would induce any fair7minded man of average-intelligence and judgment to believe that a larceny had been committed would be probable cause and reasonable ground for such belief.”
“ It was the duty of Bullard, in arresting the defendant without a warrant, to inform him of the nature of the charge against him-, and of his own official character. If the defendant knew what the charge against him was, and that Bullard was an officer, then Bullard was justified in arresting the defendant, without giving such information, as-I have mentioned; and in either case if the defendant, without any other provocation or excuse, killed Bullard, he was-guilty of murder.”
These instructions assume that the offense for which Bullard attempted to arrest the respondent was a felony-This is contested by the defense, who insist that no larceny is a felony in this State unless the value of the property exceeds twenty-five dollars, so as to make imprisonment in the State prison the penalty. And it seems to be taken for granted on both sides that the value of the barrel of oil was less than twenty-five dollars, though there was no proof on the subject. It may be questionable whether the larceny in this case was not larceny from a store, and therefore compound larceny, under How. Stat. § 9137; but we do not deem it necessary to pass on that point. It was decided by this Court in Drennan v. People 10 Mich. 169, that common-law felonies were still felonies in this State, and that the term “ felony ” was not defined by our statutes, except in its application to statutory offenses. The defense insist that this decision is erroneous, and we are urged to review it. If serious mischief could arise from it we might be inclined to do so; but the decision seldom becomes important except when the right to arrest without warrant is involved, and it may be doubtful if the good of society requires that the right to arrest without warrant should depend in cases of larceny upon the value of the property stolen. It is certain that the rule as laid down in Drennan v. People, and which was merely a rule of statutory construction, has been recognized .and acted upon'for more than twenty years, and if known evils had sprung from it, we must suppose the Legislature would have taken notice of them and applied the remedy. This not having been done, we see no sufficient reason for questioning the decision ourselves.
But it is further claimed by the defense that Bullard had no sufficient knowledge or information or ground for suspicion that a larceny had been committed by Wilson. He could not know, it is said, but that the oil was taken in sport, as Mrs. Wilson had said, or when Wilson was too intoxicated to form the felonious intent. And in Bullard’s talk with Mrs. Wilson it is claimed he said it would be “ all .right ” if the oil was delivered up; which would go to show he did not believe there was a larceny.
Upon this it is only necessary to say that the facts, even as ¡stated by respondent himself, were such that any impartial jury ought to have been satisfied by them of his guilt. The suggestion of a taking in sport would not be likely to deceive any one, and the attempt to make a vice excuse a crime is becoming too common to be listened to with much patience. There was abundant reason for the officer believing in a larceny by Wilson, and he must have been stupidly incredulous if he had not believed it.
But it is said there is no evidence that respondent knew the ■official character of Bullard, or that he was informed of the •reason for the attempted arrest. We think otherwise. Respondent is alive to tell his story: Bullard is killed. But ■certain facts are very plain, and nothing that respondent is .able to say could change them. He knew he had taken the •oil and locked it up on his own premises, and that the officers had found it there. He also knew that the officers were looking for him. When he had shot Bullard on pretense of self-defense and gone to Canada, he endeavored to keep out of the way and concealed himself, as a man conscious of innocence is not likely to do. Clara Fox says that when she asked respondent, immediately on his shooting and starting to run, what he did that for, he replied, “If I had another one left I would give it to you.” This does not sound much like a man who has merely exercised the legal right of self defense, or who thinks he has.
Bullard, in his dying moments, made his statement of the affair to several persons. To Peter Dunsmore he said he told respondent “We want you down to the station about a •barrel of oil,” whereupon respondent stepped back a pace, and fired a shot into him. To others he said that when he spoke to respondent the latter deliberately backed up and fired. To Charles Sutter he said he told respondent he had a warrant for hhn, and wanted him to go with him to the station, when respondent stepped back and fired. Bullard did not at the time wear his uniform, but the evidence is abundant that respondent knew he had come to arrest him for taking the oil, and that he assumed to be an officer. And the jury were fully justified by the evidence in finding the. shooting to be deliberate murder.
Sharp criticism was made on the argument of th'e conduct of the Police Department in detaining Mrs. Wilson for a long time in custody, as being cruel and unusual, and having-an improper motive in view. Respecting that we have nothing to say here, because it has nothing to do with the legal questions now before us. The same might be said of many other things which were brought into the discussion in this Court. We have carefully reviewed, the brief made for the defense, as well as the oral argument, and think we have taken notice of all the assigned errors which required special attention. The trial appears to have been conducted by the Recorder with the utmost fairness, and his leanings in doubtful rulings generally favored the respondent.
The judgment must therefore be affirmed.
The other Justices concurred. | [
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59
] |
Champlin, J.
At the February [1882] term of the circuit court for the county of Mecosta an information was filed-against respondent charging him with making an assault upon Nicholas Drew with intent to murder. The plea was Not. Guilty. A trial was had and the respondent convicted. He brought the case to this Court upon exceptions before judgment, and the conviction was reversed. 49 Mich. 330.
The case was again brought on for trial at the February term of the present year. Hpon the impaneling of the jury the respondent claimed the righPto thirty peremptory challenges, that being the number allowed by law, under the information filed against him; and thereupon the court remarked : “ It would simplify the case if we knew what the-prosecutor claimed in this case, — whether a conviction is-claimed for the offense of assault with intent to murder, or only a simple assault.” And thereupon the public prosecutor remarked to the court: “ From the evidence in the case, as I understand it, and considering the decision of the Supreme-Court upon the former trial, I do not think the evidence would warrant a conviction in this case of the higher crime. I do not expect to try it upon that theory: the people would be satisfied with a conviction for the next lower crime.” The-court then said: “ If the case was tried as charged, it would give the defendant the right to thirty peremptory challenges ; if it is tried upon the other theory, not asking a conviction of the higher crime, they would have a right to but five. "While the offense stands as assault with intent to murder, it. is not expected to ask for a conviction of that grade of the offense. The Supreme Court has ruled upon that question, and in fact, sent it back for a new trial on account of the conviction having been had of the higher grade upon the testimony. The ease will be tried upon the other theory.” And the court added: “ As he does not ask for a conviction of a higher crime than that of assault, the respondent would be entitled to only the same number of challenges he would if it was an original action for assault before ever it came up from the lower court.” And- accordingly the court held that respondent was entitled only to five peremptory challenges, and respondent excepted.
It is too clear for argument that, if respondent was not to be tried for the offense charged in the information, he could not, in that suit, be tried for any other offense. The rights of the respondent were those secured to him by law upon a trial of the offense of which he stood charged. He can only be put upon trial for the crime charged in the information, and his right to the number of peremptory challenges of jurors is limited by the statute applicable to the offense charged against him. It does not lie within the province of the prosecuting officer or the court to abridge the rights of the respondent by trying him for a crime of which he is not accused, and in this case, for an offense not within the jurisdiction of the court to try at all.
The court proceeded to the trial of the respondent, which resulted in a conviction for an assault. The effect of this was to acquit the respondent of the more serious charge of assault with intent to murder, and upon this information he cannot be again tried.
As a consequence, this information cannot serve as the basis of another trial for a simple assault, and the conviction of the respondent must be
Reversed and set aside, and he be discharged.
The other Justices concurred. | [
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Campbell, J.
Plaintiff, who had done business under the firm name of T. R. Chase & Co., sued defendants (as successors of the Detroit Locomotive "Works) for a balance due for coal furnished the old company. No question was made upon the identity of the succession. The only defense was an alleged payment.
Chase proved the sale by and in the name of T. R. Chase & Co., of several items of coal at different times, and payments made by Captain R. J. Hackett, who had a wholesale coal office in the same room, and through whom the coal was ordered. A final balance appeared of $46.
The defense introduced as a witness D. R. Pierce, who swore to settling with Hackett in full, supposing, as he said, that he was a member of the firm in whose name the sales were made. Orders were sent to T. R. Chase & Co., and receipts given in their name by Hackett. No inquiry was made concerning his authority. A large part of the moneys receipted for by Hackett were credited him on an old personal account instead of being paid over in cash. There was a conflict of testimony between Chase and Pierce as to the existence of an order or draft drawn by Chase on the Locomotive Works, and also as to whether Chase collected in person a part of the money named in the receipts, where the receipt was signed by him personally, and not by Hackett.
Without going further into details, it appears that on the trial the court told the jury that if they believed Pierce’s testimony they might render a verdict for the defense, but otherwise for the plaintiff.
As there was a good deal of testimony in the case, the presentation of it in this way put Mr. Pierce into undue prominence, and would not have been quite fair, because tending to throw out of view some important circumstances. But apart from this consideration, it was erroneous. The business was done in the name of T. R. Chase & Co. If Hackett had been a partner it would not have been in the usual course of business to sign as he did. His signature was in the form used by agents. It was the business of the Locomotive Works to inquire into his agency, and they acted at their own risk, except so far as his acts were ratified. Under all the circumstances, however, they were ratified to such an extent that, if Pierce told all the facts, any cash payments to him would have been safe. But it is not within the implied powers of either an agent or a partner to apply partnership moneys on his private debts, and such an application, without the authority or acquiescence of Chase, was unwarranted. They had no right to assume that Chase knew or approved it. There is nothing to show that he ever heard of it, and he was not in fault for ignorance when Hackett paid him the amounts due. There is nothing in Pierce’s testimony .to show that he had any right to give Hackett credit for Chase’s money as if it belonged to Ilackett, and to apply it on private debts. The authorities cited on the argument are very full on this point.
The judgment must be reversed and a new trial granted.
The other Justices concurred. | [
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Campbell, J.
Plaintiffs sued defendant in trover for the value of a bank check or draft made November 2, 1883, by the Thayer Lumber Co. to the order of plaintiffs, for $3600, on the Merchants’ Loan & Trust Co. of Chicago.
The facts are undisputed, and are these: Plaintiffs are engaged in lumbering near Cadillac, and at the date of the check had for about a year kept a deposit account with Nice & Messmore, bankers there. Their deposits were chiefly' made in checks and other paper which they took in their business, and these they usually indorsed in blank, and they were at once passed to their credit as cash, and subject to be drawn upon as cash. Some, but comparatively little,, money was deposited, and both money and paper were credited as cash on the deposit account. The plaintiff Cody, one of the firm of Cody & Moore, did not usually have charge of the banking matters of plaintiffs, and could only remember one previous deposit made by him, and this was in paper credited as cash.
On the 3d'of November,'1883, plaintiff Cody, having this check in his possession for his firm, took it to the bank of Nice & Messmore, and indorsed it in blank, and handed it in without any remark or directions as to what should be done with it. On the same day he drew one or more checks, but not enough to exhaust the previous deposit. The bank officer to whom it was handed filled out a deposit ticket and placed it on the usual spindle for entry, and it was so entered when the tickets were withdrawn. Whether plaintiff noticed this is disputed.
On the same day, November 3d, this check, with several '„ others, was endorsed to defendant for collection, and sent in a letter directing the defendant to collect and credit the paper, and in the same letter directing defendant to send $2000 currency, which was sent accordingly on the morning of the 5th. Three thousand dollars more had been sent on the„3d. in answer to dispatches. The remittance, as testified, would j not have béen made except on the faith of the enclosures, and; after applying this paper the balance in Nice & Messmore’s; favor was less than $200.
It had been the regular course of .business between Nice & Messmore and defendant, that defendant should remit on the faith of the paper thus transmitted to it by Nice & Mess-more, and it was done in this instance.
Defendant forwarded the paper to Chicago for collection, but it, was not paid, for these reasons: On Monday, the 5th of November, there was a run on Bice & Messmore, and during the forenoon they closed their doors and suspended. They turned out to be insolvent. On the 6th, Cody was in Cadillac, and learning of the suspension telegraphed .to Chicago to stop payment. The paper was accordingly returned unpaid to defendant. Plaintiffs claimed it as belonging to them, and brought this suit, when defendant refused to recognize their right.
In the court below defendant prevailed, and plaintiffs bring error. There are several errors assigned, but all refer to the question whether defendant had a right to act upon the paper as it appeared. The court below charged at some length, and allowed the jury to consider the facts shown in testimony, showing the true nature of the business dealings of all the parties. But the whole case really hinged upon whether the defendant had notice which should have prevented it from treating the paper as Bice & Messmore’s, and advancing them money upon it.
We do not find any testimony in the record which would have justified the jury in finding otherwise than they did, and if the court erred at all, it was in leaving this to them as an open question.
When the paper came into defendant’s hands it had an unqualified blank endorsement of plaintiffs which presumptively transferred title to any one who might become the holder. The fact that Bice & Messmore endorsed it for collection had no tendency to show that they held it themselves merely as.agents for plaintiffs, or even received it from them directly. The undisputed facts show that it was not left with them in such a way that they were bound to regard it themselves as left for plaintiff’s use, except as a deposit. But the defendant is not claimed to have had any notice outside of the paper itself. The paper came to defendant with express directions to collect and credit, and with an order for an immediate remittance of a large sum, which nearly exhausted it. This was not an exceptional case, but was in the usual course of their mutual business.
Plaintiffs rely on several cases which hold that a mere endorsement for collection does not of itself change title, and that where the recipient bank has done no act on the credit of the remitting bank in reliance on its title, the real owner may reclaim it. Put none of those cases resemble this. Here plaintiffs did not endorse it for collection, and upon the testimony it cannot be said they even deposited it for collection. Bice & Messmore, when they endorsed it for collection, not only appeared to be the owners, but gave orders for credit to them and drew upon the faith of it, and defendant actually advanced money upon it. No case is cited which would under such circumstances postpone defendant to plaintiffs. The whole doctrine of negotiable paper is in defendant’s favor.
We see no error in the record and the judgment should be affirmed.
The other Justices concurred. | [
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Per Curiam.
The plaintiff, Julio Lopez, petitioned for a hearing before the Bureau of Workers’ Disability Compensation on July 30, 1975, asserting that he was permanently and totally disabled by virtue of the loss of the industrial use of both hands. A hearing was held on October 28, 1976, resulting in a finding that plaintiff was permanently and totally disabled. Defendants appealed to the Workers’ Compensation Appeal Board (WCAB) which affirmed the hearing referee’s decision with certain modifications. Additional facts will be discussed in this opinion as necessary to resolution of the various issues raised by the appellants.
Issue. I: Did the Workers’ Compensation Appeal Board err in using an "any reasonable employment” standard in ñnding that plaintiff had lost the industrial usefulness of his hands?
The WCAB ruled that the proper standard to be applied in determining the loss of industrial use of an organ is whether the "injury has precluded the employee from use of the member or organ in performing 'any reasonable employment’ Using this standard, plaintiff was found to have lost the industrial usefulness of his hands.
In Pipe v Leese Tool & Die Co, 410 Mich 510, 527; 302 NW2d 526 (1981), the Supreme Court stated:
"For purposes of determining an award of specific-loss benefits for the loss of a hand, there must be a showing of either anatomical loss or loss of the industrial use of the hand as determined by the loss of the primary service of the hand in industry.” (Emphasis changed.)
Appellants claim that since the WCAB used the "any reasonable employment” standard rather than a "loss of primary service of the hand in industry” standard, the case must be remanded for application of the latter standard to the facts of this case. We disagree.
It is important to note that the Supreme Court did not enunciate a new standard in Pipe. In Pipe, the Court was concerned that one of its earlier decisions, Hutsko v Chrysler Corp, 381 Mich 99; 158 NW2d 874 (1968), was being misinterpreted as requiring a "showing of complete amputation or its equivalent”. Pipe, supra, p 525. The Court in Pipe sought to correct this misinterpretation of Hutsko, and specifically stated that:
"The fact that Hutsko may have been subject to misinterpretation does not require that we establish a new test for determining qualification for specific-loss benefits for the loss of a hand.” Pipe, supra, p 527.
In the instant case, the WCAB properly declined to apply the "amputation equivalent” standard. Rather, it drew language from DeGeer v DeGeer Farm Equipment Co, 391 Mich 96, 102; 214 NW2d 794 (1974), in which the Supreme Court stated:
"If appellant DeGeer, on remand, establishes that the use of his legs produces such disabling back pain that he is no longer able to use his legs to perform any reasonable employment, then he will clearly be eligible for permanent and total disability benefits under the above discussed section of the Workmen’s Compensation Act.”
The terms used in Pipe and DeGeer are virtually the same. An employee cannot be precluded from performing "any reasonable employment” with his hands and yet still have the use of "the primary service of his hands in industry”.
Issue II: Is the decision of the Workers’ Compensation Appeal Board that plaintiff suffered a loss of the industrial usefulness of his hands supported by the evidence?
Plaintiff testified that on October 27, 1962, while he was attempting to start the engine of a truck through the use of a crank, the engine backfired causing the crank handle to spin and strike both the plaintiffs wrists, breaking his left wrist and injuring his right wrist. Plaintiff said he had been unemployed since the date of his injury, that he always had pain and that he could not use his right hand and arm for more than 10 or 15 minutes at a time due to pain. He further testified that he could not use his left hand, wrist or arm at all due to pain. He further testified that it was necessary for his wife to button his shirts and tie his shoes and that he could not pick fruit because he could not hold things in his hands. The plaintiff presented medical testimony essentially supporting the plaintiffs testimony and, further, indicating that the plaintiffs wrist-hand problems "are permanent and will progress”.
Findings of fact by the WCAB are conclusive if supported by any competent evidence in the record and there is an absence of fraud. MCL 418.861; MSA 17.237(861); Const 1963, art 6, § 28; Derwinski v Eureka Tire Co, 407 Mich 469; 286 NW2d 672 (1979); Lopucki v Ford Motor Co, 109 Mich App 231; 311 NW2d 338 (1981). Defendants do not allege the existence of fraud and it is clear that there was sufficient evidence to support the WCAB’s findings in this regard.
Issue III: Is there competent evidence to support the WCAB’s ñnding that plaintiff was totally and permanently disabled prior to September 1, 1965?
Appellants Flower Basket Nursery and Michigan State Accident Fund argue that there is no basis in the record for the WCAB’s findings that plaintiff was totally and permanently disabled prior to September 1, 1965. The time when plaintiff became totally and permanently disabled is a question of fact, and, therefore, the WCAB’s findings on this issue may not be overturned if there is competent evidence to support its findings. See Lopucki, supra. The WCAB noted that plaintiff had testified that he had been unable either to work or drive an automobile since his injury, that his condition had deteriorated since his injury and that he had been unable to use either of his hands for more than 15 minutes since 1964. The board also noted that there was medical testimony consistent with plaintiffs testimony regarding the onset of his disability. One of the doctors had testified that "back in 1964, I felt that the future was rather dim if he would do certain types of work with his hands”. The doctor further testified that, at that time, he would have advised plaintiff not to do any work. The examination with regard to which the doctor was testifying occurred on April 9, 1965.
Thus, there was competent evidence on the record to support the WCAB’s finding of fact in this regard.
Issue IV: Does the "one-year-back” rule apply to defendants’ liability?
MCL 418.833(1); MSA 17.237(833)(1), provides:
"If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application.”
Defendants Flower Basket Nursery and Michigan State Accident Fund argued that the WCAB erred in refusing to apply the above section of the statute in this case. They argue that since they paid the plaintiff 500 weeks of benefits earlier on a voluntary basis, plaintiff’s present application is for "further compensation” and that accordingly, permanent and total disability benefits can be ordered to be paid by the defendant-employer only from August 4, 1974, one year prior to the date of filing the plaintiff’s present petition.
In refusing to apply the one-year-back rule, the WCAB cited Martin v Somberg-Berlin Metals, Co, 407 Mich 737; 288 NW2d 574 (1980). In that case, the plaintiff had been receiving total disability benefits from his employer from the time that he injured his back on November 11, 1963. On December 11, 1972, the plaintiff filed a petition seeking differential benefits from the Second Injury Fund. He asserted that his condition had worsened and that he had become totally and permanently disabled from the back injury due to the industrial loss of the use of both legs. The Supreme Court in that case held that no compensation had been paid for the "total and permanent” disability resulting from the loss of industrial use of claimant’s legs and, hence, the award of differential benefits is not "further compensation” subject to the one-year-back rule.
In Piwowarski v Detroit Sulphite Pulp & Paper Co, 412 Mich 716; 316 NW2d 719 (1982), the plaintiff in 1948 had lost his right hand and three fingers of his left hand in an industrial accident. He received specific-loss benefits for his injuries. In 1970, he filed a petition claiming total and permanent disability as a result of the loss, in the 1948 accident, of the industrial use of both hands. The Supreme Court in that case said that specific-loss benefits and total and permanent disability benefits are not for the same category of disability and that, accordingly, the "one-year-back” rule did not apply.
In our opinion, the statute contemplates, as separate categories of injuries, those injuries which are totally disabling and those injuries which are totally and permanently disabling. Accordingly, the WCAB did not err in refusing to apply the "one-year-back” rule.
Issue V: Did the WCAB err in not applying the age 65 reduction in beneñts provided by MCL 418.357; MSA 17.237(357)?
Plaintiff was 56 years old at the time of his injury in April, 1962, and was approximately 70 years of age at the time of the hearing. He also is qualified to receive social security benefits.
MCL 418.357; MSA 17.237(357) provides:
"(1) When an employee who is receiving weekly payments or is entitled to weekly payments reaches or has reached or passed the age of 65, the weekly payments for each year following a sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65, so that on his seventy-fifth birthday, the weekly payments shall have been reduced by 50%; after which there shall not be a further reduction for the duration of the employee’s life. Weekly payments shall not be reduced below the minimum weekly benefit as provided in this act.
"(2) Subsection (1) shall not apply to a person 65 years of age or over otherwise eligible and receiving weekly payments who is not eligible for benefits under the federal social security act, 42 U.S.C. sections 301-1396i.”
The WCAB refused to apply this provision for the reason that it was not in effect at the time of the plaintiff’s injury.
In Welch v Westran Corp, 45 Mich App 1, 5; 205 NW2d 828 (1973), aff'd on other grounds 395 Mich 169; 235 NW2d 545 (1975), the Court was faced with whether the statute, amended in 1968, operated "retroactively to reduce the weekly benefits of a plaintiff who suffered a compensable injury after his sixty-fifth birthday but prior to July 1, 1968, the effective date of the amendment”. The Court held that the statute was not to be applied retroactively to reduce the plaintiff’s benefits in that case prior to July 1, 1968. The Court did state, however:
"Since the section as amended provides that when the employee is either receiving or entitled to receive payment and reaches or has reached or passed age 65 his benefits will be reduced, it is clear that the Legislature intended that subsequent to July 1, 1968, all persons over the age of 65 are subject to the reduced-benefit provision, no matter when the injury was incurred.” Welch, supra, p 5.
In this case, the plaintiff reached the age of 65 years after July 1, 1968. Accordingly, the WCAB erred in failing to allow for reduction in plaintiffs benefits pursuant to this statute.
Affirmed in part, reversed in part, and remanded. | [
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M. J. Kelly, J.
We revisit this appeal by order of the Supreme Court dated August 24, 1982, 414 Mich 901 (1982), which reversed our previous unpublished opinion affirming the trial court’s denial of a motion for a new trial. The Supreme Court order notes that:
"Any failure to complete the record on appeal in respect to the proceedings on the motion for new trial did not justify dismissal of the appeal.”
The Supreme Court’s order then approves the use of a motion for new trial, however perfunctory, to preserve claimed errors committed during trial and neither briefed, argued, or recorded as grounds in support of motion for a new trial.
This is a products liability action arising out of an automobile accident in which plaintiff Ida Gates’s decedent, Willie Lee Gates, was killed and plaintiff D. L. Brown was injured. Following plaintiffs’ presentation of proofs at trial, the trial court granted a directed verdict in favor of defendants. Judgment was entered on March 16, 1979. Plaintiffs filed a timely motion for a new trial. Plaintiffs’ motion did not delineate the grounds upon which they were seeking a new trial and their brief in support of their motion consisted only of one sentence, in which they stated they would "rely on GCR 1963, 527.1(1), (5) and (7) in support of motion for new trial”. This motion was denied at an April 19, 1979 hearing. A written order dated April 19, 1979, denying the motion for a new trial is contained in the circuit court file. Although no subsequent motion for a new trial was made, a second order, dated January 7, 1980, is also contained in the circuit court file. On January 23, 1980, plaintiffs claimed an appeal as of right "from the order denying plaintiffs’ motion for new trial entered on the 7th day of January, 1980”.
The grant or denial of a motion for a new trial is within the sound discretion of the trial court which, if not abused, cannot be interfered with on appeal. Kailimai v Firestone Tire & Rubber Co, 398 Mich 230, 232; 247 NW2d 295 (1976). Thus, on June 8, 1981, this Court, in an unpublished opinion, affirmed the trial court’s denial of plaintiffs’ motion for a new trial. We noted that:
"the substance of plaintiffs’ motion is not clear from the motion itself, the 'briefs’ concerning the motion, or the trial court’s order denying the motion. In addition, plaintiffs failed to present this Court with a transcript of the oral argument on the motion which might have clarified the issues presented. As was noted in [Lemanski v Ford Motor Co, 82 Mich App 244; 266 NW2d 775 (1978), lv den 450 Mich 811 (1979)], the requirement is that there be not only form but also substance to the motion for a new trial for it is only on the substance contained in the presentation of the motion that this Court can test whether the trial court in its disposition of the motion abused its discretion to the point that reversal of the trial court is required.” Gates v Volkswagenwerk Aktiengesellschaft (Docket No 49525, decided June 8, 1981).
Plaintiffs subsequently applied for leave to appeal to the Supreme Court. In lieu of granting leave, the Court reversed and remanded the case in an order "for plenary consideration of the assignments of error addressed to the trial judge’s direction of a verdict following the conclusion of plaintiff’s proofs”. Gates v Volkswagenwerk Aktiengesellschaft, 414 Mich 901 (1982).
The Supreme Court’s perfunctory order requires us to do more than determine whether the trial court abused its discretion in denying plaintiffs’ motion for a new trial. It directs us to determine the propriety of the trial court’s original grant of a directed verdict.
At trial, the deposition of plaintiff D. L. Brown was read into evidence. In his deposition, Brown testified that he accompanied decedent Gates on a trip in his Volkswagen bus from Detroit to Alabama and back. On the way to Alabama, between Toledo and Cincinnati, the bus took a "sharp dip” to the left and almost went across the road before Gates could get the vehicle under control. Subsequently, the vehicle took several more dips. Gates had to "fight it to get it back under control”. On the return trip, the road was dry, there was no snow or ice. Although the posted speed limit was 70 miles per hour, Gates was driving the Volkswagen at approximately 55 miles per hour. Brown heard a "pop”. Brown looked at Gates, who was trying to control the steering wheel. Brown described Gates as "wrestling” and "struggling” with the steering wheel. The bus tilted over on its left side. Brown was injured and Gates was killed.
Taylor Police Lieutenant Robert Harshberger was called to the scene of the accident. He testified that it appeared that the bus had hit a guardrail about 60 feet south of where the bus finally came to a stop. Harshberger described the driving conditions at the time of the accident as extremely hazardous. A sheet of ice covered the road. Other vehicles were having problems staying on the road.
Taylor Police Officer Thomas Moore arrived at the scene of the accident with Harshberger. He testified that the road conditions were icy. Two or three other cars lost control at the scene while he was there, although none of those occurrences resulted in a serious accident.
Jack Campau, a mechanical engineer, testified that sometime after the accident he examined the bus at a car dealership. It had an odometer read ing of 21,609.7. The steering wheel "felt normal”. His inspection of the vehicle found everything to be normal, with the exception of the right rear shock absorber which looked to be "rubbing”. Campau next examined and took notes regarding the accident site.
The bus was subsequently towed from the dealership to a service station and lifted onto a hoist. There, Campau noticed that the steering damper on the steering linkage was broken. According to Campau, a steering damper tends to act as a shock absorber and dampen any wheel oscillations. Plaintiffs’ exhibit "R” was received into evidence. It was a steering damper purchased at a Volkswagen dealer as a replacement part for the bus. According to Campau, the exhibit physically, on the outside, looked the same as the damper on the Volkswagen. (The original damper was found by the trial court to have been lost through no fault of either party.) Campau found that the vehicle’s wheels could be turned further to the right than they could be turned to the left. Campau testified that after careful examination of the steering damper, he
"could see that one tube had broken all the way around. I would see there was a dent in the smaller end. I could see there were some gouges in the piston on the inside. And other than that, I made no notice of anything of any importance.”
Campau testified further that Volkswagens are the only vehicles he knows of which have steering dampers. The dampers do not require any servicing. Campau specifically opined that the bus’s "steering damper failed, permitting an oscillation that caused a loss of control, and subsequently, the collision”. He reasoned that oscillations can be caused by a number of contributing factors, such as road condition, speed, wind, road curvature, and wheel imbalance. With the failure of the damper and the right combination of conditions existing to result in an oscillation, there would be "no damper to dampen it”. Campau opined further that:
"There were a number of contributing factors, but the one factor that was present that would have, in my opinion, eliminated the loss of control was the steering damper. The loss of the steering damper was the one item that resulted in the loss of control because it had failed. It if hadn’t failed, the presence of all the other factors probably wouldn’t have resulted in loss of control.”
He added that he "didn’t find any other possible loss of control”.
When asked how the damper could have broken, Campau gave two possible explanations: a fatigue failure which resulted in a gradual failure and eventual separation or from some direct impact to the damper. An impact failure would not result from something hitting the vehicle but rather from "the bus going through a chuckhole or something like that”. He added, however, that a sound damper would not have broken by the wheel hitting a chuckhole. Campau’s opinion was that the damper broke because of fatigue failure. Although Campau could not be sure whether the damper broke several days before the accident or at the time of the accident, he was certain that the damper broke "before loss of control”. Campau’s opinion was that the damper was "defective in design”.
The deposition of mechanical and metallurgical engineer Charles Smith was read into evidence. He testified that he examined the failed damper from the Volkswagen bus along with the replacement damper. He opined that the damper could have failed either due to fatigue or due to impact. He testified that he leaned "toward the view that a fatigue failure might be somewhat more likely”. He noted that "there is a stress concentration located in a region of reduced wall thickness which makes it highly susceptible to failure at that point”. In Smith’s opinion, it was bad designing to have the reduced wall section in light of the stress concentration. Smith did not have enough information, however, to comment on whether the damper was capable of withstanding expectable stresses.
The deposition of truck driver Carl Welch, a witness to the accident, was read into evidence. He testified that the accident occurred early in the morning and that the road was very icy. The bus passed him at a speed of approximately 55 to 60 miles per hour before the accident. As the bus pulled in front of Welch, it lost control. Instead of straightening out, the vehicle headed for the guardrail, hit the guardrail, and flipped on its side.
Thomas Trombly came upon the accident shortly after it had occurred. He testified that the road was slick.
Plaintiff Ida Gates testified that her husband bought the Volkswagen bus from defendant Melton Motors in June of 1973. She never saw any damage to the Volkswagen before the accident.
Martin Peterson, a wrecker driver, was called to the scene of the accident. He proceeded to flip the bus back onto its wheels. Once the bus was upright, Peterson noticed a broken piece hanging down underneath the vehicle. Upon being shown photographs, Peterson pointed to the steering damper as being the broken piece.
Besides testimony concerning the injuries to Willie Gates, D. L. Brown, and resulting damages to their families, the above concluded the presentation of plaintiffs’ proofs. Defendants then moved for a directed verdict, which was granted by the trial court.
The court reasoned that plaintiffs failed to link the steering damper to any specific defendant. The court stated:
"There has been no showing, apparently by way of discovery depositions, that this German corporation has anything to do with the bus. Maybe there’s a Volkswagen of America that simply distributes. I don’t know who these people are. I can guess all day long but I don’t know what the system was in 1973.”
The court found also that the damper was not defective because the accident was not foreseeable:
"There has been no showing here that the defendants failed to use reasonable care in the manufacture to guard against unreasonable and foreseeable risk. Campau was never taken down the road to show that it was a foreseeable risk that this could occur. He says he doesn’t even know quite how the damper works. He can speculate that it makes the riding nicer, and it may help in terms of oscillation. He indicates that in his own automobile he has oscillations on occasions, that all automobiles will have oscillations, there’s no way to prevent oscillations. If a car is out of balance in terms of the wheels, you’re going to have some oscillations. He can speculate that the damper on this Volkswagen was either used to make the ride nicer or to minimize oscillation. He suggests that there’s an occurrence that one might never be able to duplicate again, a unique set of circumstances; therefore that takes it out of any possible realm of foreseeability.
"How do you design something, using reasonable care —even Smith suggests that if there will be a break, it will be a break at the weakest part in terms of the design of the item. That’s as far as he’ll go, and he says it should be designed differently. He doesn’t say that this is a bad and dangerous, inherently dangerous design, does he?
"Mr. Rhodes [plaintiff's attorney]: He says it right in the testimony. He says it’s a bad design for this.
"The Court: He calls it a bad design.
"Mr. Rhodes: And he says it’s bad for this or any other damper.
"The Court: That’s right; it might break. But he certainly doesn’t classify it as inherently dangerous because he doesn’t even know what the damper does. He simply addresses himself to a metal design. That’s not enough. If I’m designing in metal, I should design it differently. Is it inherently dangerous? He doesn’t go into that. He doesn’t know.
"I don’t know how one is supposed to design an item against something that might never happen again and might never occur under any other circumstances. How do you design something like that?”
The court found also that plaintiffs presented inadequate proof of causation:
"I can’t help but note Mr. Brown’s testimony that there was trouble on the way down South. We’d have to speculate as to what those troubles might be. We didn’t have, at least by Mr. Brown’s statements, oscillation that Campau would describe. He talked about their taking a little dip, having trouble going across the road and keeping it under control. That’s in Toledo and Cincinnati. Mr. Brown says that 'We’d have run off the road if he hadn’t controlled it. It just dipped.’ We don’t know what that is. It certainly would be consistent with Campau’s testimony that you’ve got an imbalance in the alignment. That’s what he says happened to his car. This is certainly a situation where there are two or more possible causes, one of which the defendants— which defendant, I don’t know — one of the defendants might be responsible for.”
In a trial by jury, the jury, not the judge, is the trier of fact. Thus, in deciding whether to grant a motion for a directed verdict, the trial court must view the evidence and all legitimate inferences that may be drawn therefrom in a light most favorable to the non-moving party. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975). When so viewed, if the evidence establishes a prima facie case, the motion must be denied. Caldwell, supra, p 407.
To present a prima facie case, plaintiffs needed to present evidence: (1) of a defect, (2) of a causal connection between the defect and the accident, and (3) that the defect was attributable to defendants. See Vanderberg v General Motors Corp, 96 Mich App 683, 689; 293 NW2d 676 (1980); Piercefield v Remington Arms Co, Inc, 375 Mich 85, 98-99; 133 NW2d 129 (1965).
Plaintiffs presented sufficient evidence that the steering damper was defective. Peterson saw the broken damper at the scene of the accident. Campau found the steering damper broken. Campau opined that the damper broke due to fatigue. Smith agreed that fatigue was the more likely possible cause of the breakage. Even if the damper had broken due to some type of impact, however, such as hitting a chuckhole, Campau testified that a sound damper would not have broken under such circumstances. Common to each alternative is that the damper was defective. Whenever the damper broke, Campau was certain that it occurred "before loss of control”. Smith added that it was a product of bad designing to have the damper’s reduced wall section in light of the stress concentration. We find this evidence sufficient to raise a factual question for the jury as to whether the steering damper was defective.
Sufficient evidence was presented to demonstrate a causal connection between the defect and the accident. Campau testified that the loss of the damper was a key factor leading to the decedent’s loss of control of the bus. Campau "didn’t find any other possible loss of control”. Brown testified that the decedent was wrestling and struggling with the steering wheel. It would be reasonable to infer from this testimony that the defect in, and failure of, the steering damper caused the accident.
Finally, plaintiffs needed to present sufficient evidence tying the damper to defendants. The trial court’s main problem with attributing the damper to the defendant manufacturers was that plaintiffs brought suit against two Volkswagen manufacturers without presenting evidence as to which of the two, if either, was responsible for the manufacture or installation of the damper. Not only did plaintiffs fail at the trial court level to introduce evidence linking one, the other, or both of the Volkswagen manufacturers to the damper, they have failed to do so on appeal as well. In attempting to attribute the vehicle to both manufacturers, plaintiffs cite this Court only to two interrogatory answers, which were not introduced into evidence at trial. The entire text of the interrogatory questions and answers are as follows:
Plaintiffs’ Question: "State all steps of any inspections made of the steering damper of a 1973 Volkswagen Van during the process of manufacture and all tests made upon same prior to its being released and sold to the trade.
Defendants’ Answer: "Defendants did not manufacture the steering damper installed in new 1973 Volkswagen Type II vehicles. The inspection procedures conducted by the manufacturer during the manufacturing process are not known to defendants. Upon purchase, units are inspected pursuant to quality controls, including various stroke and compression tests.”
Plaintiffs’ Question: "For a period of five (5) years prior to the date of the accident involved in this case, on or about the 18th day of January, 1974, how many steering dampers of the Volkswagen Van were either returned from the field, or returned to your duly authorized dealers throughout the United States who claimed that the same was defective?”
Defendants’ Answer: "Defendants do not possess information of the nature described to enable them to respond to this inquiry. Further, objection is made in that the inquiry seeks information regarding 'claims’ based on alleged defective steering dampers without relevance to similarity with the circumstances of the specific occurrence involved herein. The steering damper installed in the 1973 Volkswagen Type II vehicle was fit for its intended use without misuse.”
The questions and answers do not tell us whether the particular defendants in this case manufactured or assembled the vehicle involved in the accident.
Plaintiffs’ complaint alleged that defendant Volkswagen of America is a wholly owned subsidiary of Volkswagenwerk Aktiengesellschaft. Defendants admitted this fact in their answer. Plaintiffs’ complaint alleged further that decedent’s van, vehicle #223-2043-309, was designed, manufactured, and sold by the defendants. In their answer, however, defendants neither admitted nor denied this allegation. It was dependent on plaintiffs, therefore, to present some evidence that the Volkswagen manufacturers against which plaintiffs brought suit had some connection with decedent’s automobile. This, plaintiffs failed to do. Without at least some evidence attributing decedent’s vehicle to either of the manufacturers, the trial court could not allow the case to go to the jury.
Evidence was presented that decedent’s vehicle was purchased from defendant Melton Motors. Thus, plaintiffs did establish a prima facie case against Melton Motors. A directed verdict, therefore, should not have been granted in favor of that defendant.
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Per Curiam.
Defendant was convicted by a jury of second-degree criminal sexual conduct, MCL 750.529c(l)(a); MSA 28.788(3)(l)(a), and was sen tenced to a prison term of 2-1/2 to 15 years. He appeals as of right raising three issues.
The six-year-old victim, Beth Ann Thompson, testified at trial. Though her testimony was at times contradictory, it disclosed that on one night in July, 1980, while her mother was out with her boyfriend, defendant and three other adults spent the night with Beth Ann, her three-year-old sister and her cousin. After Beth Ann had fallen asleep, defendant woke her and took her into her mother’s bedroom where he touched her on her "cookie”. Beth Ann’s mother testified that "cookie” was Beth Ann’s word for her genitals. Beth Ann did not tell her mother about the incident but did tell her aunt approximately one week later.
Beth Ann’s aunt, Mary King, testified that she was with Beth Ann during the weekend of July 13, 1980. She was allowed to testify, over defense objection, concerning the statements Beth Ann made to her relative to the incident. According to Mrs. King, Beth Ann appeared nervous and upset when she made the statements and was shaking and complained of a stomachache. Beth Ann told Mrs. King that defendant had tried to put his "privates” in her mouth and between her legs and that he was "messing with her”. Beth Ann also told her aunt that she had not told her mother about the incident.
Defendant asserts as his first issue on appeal that it was reversible error for the trial court to allow the complainant’s aunt, Mary King, to testify relative to the statements made to her by complainant concerning the incident approximately one week after the incident. At trial, defense counsel’s only objection to the testimony was that the delay between the time of the incident and the statements made by the complainant to Mrs. King had not been explained. The prosecutor thereafter laid the foundation by eliciting testimony from the complainant concerning the reasons for the delay. After hearing this testimony, the trial court ruled that Mrs. King’s testimony was admissible, finding the reason for the delay to be Beth Ann’s fear of her mother’s disbelief and her concern that her mother would think she was a "bad girl”.
The complaint or statements of a victim of criminal sexual conduct may be admissible as an exception to the hearsay rule under MRE 803(2) as an excited utterance. People v Turner, 112 Mich App 381; 316 NW2d 426 (1982). The excited utterance exception and its common-law predecessor (the res gestae exception) have been liberally interpreted when applied to children who are victims of sexual assaults. 19 ALR2d 579, § 5, p 586. Thus, where the victim is a child of tender years, testimony recounting her prior out-of-court statements concerning the details of the assault may be admissible as part of the res gestae despite the lapse of time between the incident and the statements, provided the delay is explained. People v Bonneau, 323 Mich 237; 35 NW2d 161 (1948); People v Davison, 12 Mich App 429; 163 NW2d 10 (1968); People v Edgar, 113 Mich App 528; 317 NW2d 675 (1982). The reasoning behind such a liberal application in sexual abuse cases involving children is twofold: first, a child victim may be under stress caused by the event for a longer period of time than an adult; second, a delay between the event and the child’s complaint may be attributed to the child’s tender years, the perpetrator’s threats, or the child’s fright. People v Edgar, supra; People v Bonneau, supra. In the present case, Mrs. King’s testimony must be evaluated in light of the requirements of MRE 803(2) and the tender years rule.
On the record presented, the trier of fact could reasonably conclude that the sexual assault upon the six-year-old victim in the present case by a family friend was a startling event and that Beth Ann was still under stress caused by the event for a week thereafter. Beth Ann’s statements were volunteered and, therefore, spontaneous. Finally, the one-week delay between the incident and the statements made to Mrs. King does not preclude admissibility since there was sufficient evidence to support the trial court’s finding that the delay was caused by the victim’s tender age and fear of her mother’s reaction. The trial court properly admitted the challenged testimony.
Defendant next contends that his conviction should be reversed because the information alleged that the offense occurred on July 4, 1980, while the prosecutor’s proofs at trial showed that it could have occurred on either July 3, 1980, or July 4, 1980. While there was conflicting testimony from the witnesses at trial as to whether the night in question was July 3 or July 4, 1980, all the testimony was confined to those two dates. Defendant presented an alibi to both dates in question. MCL 767.45(2); MSA 28.985(2) states that an information shall contain the time of the offense as near as may be but no variance as to time shall be fatal unless time is of the essence of the offense. Time is not of the essence nor a material element in a criminal sexual conduct case, at least where the victim is a child. People v Howell, 396 Mich 16; 238 NW2d 148 (1976); People v Bowyer, 108 Mich App 517; 310 NW2d 445 (1981). Nor does the defense of alibi make time of the essence. People v Smith, 58 Mich App 76; 227 NW2d 233 (1975). Defendant’s contention is without merit.
Finally, in sentencing defendant, the trial judge stated:
"The sentence of the Court is that you, Mr. McConnell, — let me put it to you this way, Mr. McConnell, so you clearly understand: the court is going to give you 2-1/2 to 15 in the Michigan Corrections Commission for this oifense.
"I would ordinarily give you 2 to 15, but I am giving you 2-1/2 because I feel you lied under oath.”
Defendant contends the trial judge erred in increasing his sentence by six months on the ground that the judge believed he lied under oath, asserting that such consideration is improper. We agree.
As a general rule, a sentencing judge is awarded wide discretion when the sentence is within the statutory parameters. People v McLott, 70 Mich App 524; 245 NW2d 814 (1976); People v Stubbs, 99 Mich App 643; 298 NW2d 612 (1980). However, in People v Anderson, 391 Mich 419; 216 NW2d 780 (1974), a majority of the Supreme Court expressed the view that it would be improper for a sentencing judge to impose additional punishment because he believes the defendant committed perjury, adopting the view that if the government wishes to prosecute for the independent substantive oifense of perjury it may do so and that, in such a proceeding, the defendant would be awarded all of the protections of a criminal trial. See also Scott v United States, 135 US App DC 377; 419 F2d 264 (1969). In People v Ballenberger, 51 Mich App 353; 214 NW2d 742 (1974), a panel of this Court, though recognizing the impropriety of allowing such considerations to influence the sentence imposed, held that the fact that the sentence imposed was less than the maximum minimum permitted by law negated any claims that the stated beliefs of the sentencing judge influenced the sentence and thereby prejudiced the defendant.
In the instant case, the statements of the trial judge at sentencing clearly indicate that in deciding upon the sentence he improperly relied upon his belief that the defendant commited perjury during the trial and that as a result the sentence was enhanced. Since the sentencing judge stated that the minimum sentence he would impose absent the impermissible consideration was 2 years, rather than remand for resentencing, we hereby amend the sentence to a minimum of 2 years and a maximum of 15 years. GCR 1963, 820.1(7).
Affirmed as modified. | [
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] |
M. F. Cavanagh, P.J.
Plaintiff appeals by leave granted from an opinion and order of the Workers’ Compensation Appeal Board (WCAB) which modified the decision of the hearing referee by granting the defendant credit for all wages earned by the plaintiff for the purpose of computing the amount of compensation benefits owed by the defendant.
Plaintiff was employed full time as a journeyman sheet metal worker and on weekends supplemented his income by working part time for other employers, including the defendant. One weekend, while working for the defendant, the plaintiff fell from a ladder and injured himself. For the next three months, the plaintiff was disabled from engaging in both part-time and full-time employment. During this period, the defendant paid the plaintiff compensation at the statutory rate. Although the plaintiff subsequently returned to work at his full-time job, he was unable to return to his part-time employment because of the remedial pain from his injury. The parties do not dispute the hearing referee’s finding that the plaintiff has lost earning capacity in his part-time employment and that he is partially disabled within his skill. However, the parties disagree regarding the amount of compensation due the plaintiff. The WCAB, in modifying the hearing referee’s decision, held that the plaintiff is entitled to compensation benefits for his injury at the part-time job but that the defendant is entitled to a credit for all wages earned by the plaintiff in his skill, whether earned in part-time or full-time employment. Plaintiff counters that the defendant should receive credit only for any wages earned in favored part-time employment.
We first note that the findings of fact made by the WCAB are conclusive and may not be set aside in the absence of fraud. MCL 418.861; MSA 17.237(861); Derwinski v Eureka Tire Co, 407 Mich 469, 481-482; 286 NW2d 672 (1979). However, the WCAB’s application of legal standards is properly reviewable by an appellate court. Askew v Macomber, 63 Mich App 359, 362; 234 NW2d 523 (1975), aff'd 398 Mich 212; 247 NW2d 288 (1976). Decisions of the WCAB which misapply the proper legal standards may be set aside, and here we are faced with such a case.
In Bowles v James Lumber Co, 345 Mich 292; 75 NW2d 822 (1956), the Michigan Supreme Court held that when an employee receives a disabling injury while working at a particular job, any wages the employee receives from a separate, unrelated job which is unaffected by the disability may not be considered in calculating the benefits due from the disability-related employment. The Court reasoned that an employer should not be able to limit his or her liability by offsetting benefits due the employee with the employee’s wages earned at a separate job when those wages could not be considered to increase the employer’s liability. Bowles, p 294. Subsequently, in Lahay v Hastings Lodge No 1965 BPOE, 398 Mich 467; 247 NW2d 817 (1976), the Court not only reaffirmed its decision in Bowles, supra, but also extended the Bowles holding by stating that '[unrelated and unaffected concurrent employment should not be considered under the statute for any purpose”. (Emphasis in original.) Lahay, p 480. Thus, not only may the wages from an employee’s unaffected job not be considered when calculating benefits due from the disability-related employment, but also the number of hours the employee works in the unaffected job may not be considered in deciding whether the employee is a part-time or full-time worker under the Worker’s Disability Compensation Act. Thus, the employer is protected from being required to calculate an employee’s compensation benefits based upon the total number of hours the employee worked in all his or her jobs while not being allowed to reduce the amount of benefits owed by any wages the employee was receiving from any other employment.
At the time this cause of action arose, the Worker’s Disability Compensation Act provided different formulas for computing an employee’s average weekly wage, depending upon whether the employee was a part-time or full-time worker. MCL 418.371, subds (2), (3); MSA 17.237(371), subds (2), (3), then in effect, provided as follows:
"(2) Average weekly wage means the weekly wage earned by the employee at the time of his injury, * * * but in no case less than 40 times his hourly rate of wage or earning. When it is found that the established normal work week for the employee’s classification of employment in the establishment of the employer where the employee suffered a personal injury is less than 40 hours, then the average weekly wage shall be established by multiplying the employee’s hourly rate or earning by the number of hours customarily worked in the employee’s classification or employment in that place of employment or his actual earned wages, whichever is greater.
"(3) When a hearing referee 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. When it is found that the employee has worked an average of 25 hours or more per week in all of his current employments, he shall not be considered a part-time employee.”
Thus, an employee who worked more than 25 hours a week in concurrent employment was given the benefit of a fictional 40-hour work week, regardless of the number of actual hours worked, when calculating his or her average weekly wage. The purpose of this statutory section was to insure that an employee whose disability extended to all his or her current employment would be adequately and justly compensated by the employer in whose employ the worker was injured. The problem in Bowles, supra, and Lahay, supra, was that the employee’s disability did not extend to all his current employments, rather, he became disabled in his part-time employment but was able to return unhampered to his full-time employment. Thus, the calculation of benefits owed to the employee had to be based solely on the employment which was affected by the disability.
In the instant case, the plaintiff became temporarily disabled in both his part-time and full-time employment but he was subsequently able to return to his full-time employment. However, the WCAB failed to distinguish between indefinitely affected employment and temporarily affected employment. During the period that the plaintiff’s disability affected both his full-time and part-time employment, the defendant was entitled to consider any wages the plaintiff earned in his full-time job when calculating the benefits due the plaintiff. However, when the plaintiff’s full-time job was no longer affected by his disability, the defendant was no longer entitled to a credit for any wages the plaintiff earned in his full-time job. Lahay, supra. This does not result in a windfall to the plaintiff, as the defendant argues, because the hours the plaintiff works in his full-time employment may also not be considered to raise the plaintiff to a status of a full-time worker for the purpose of the defendant’s calculation of benefits. As the Court pointed out in Lahay, supra, p 480:
"The result, then, is that an employee working at one full-time job and one part-time job will be considered a part-time employee under the act if his disabling injury affects only the part-time job, and in such case his average weekly wage would be calculated according to the first sentence of subsection 3 of the statute. [MCL 418.371(3); MSA 17.237(371)(3), prior to being amended by 1980 PA 357].”
We reverse the decision of the WCAB and remand this case for a redetermination of the plaintiff’s average weekly wage, based solely upon the plaintiff’s part-time employment with the defendant. The defendant is only entitled to credit for any additional wages the plaintiff receives from part-time employment from the defendant or from replacement part-time employment.
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] |
R. M. Maher, J.
On April 18, 1981, defendant was bound over to circuit court on a charge of delivery of marijuana, MCL 333.7401, subds (1) and (2)(c); MSA 14.15(7401), subds (1) and (2)(c). On June 24, 1981, the circuit court suppressed the evidence and dismissed the case. The people appeal as of right.
On March 27, 1981, the Hesperia Police Department executed a search warrant supported by the following affidavit:
"1. Affiant is a Sgt. with the Hesperia Police Department, Oceana County, Michigan, and is a resident of the County of Oceana.
"2. The Department has had information, suspicions, investigations with regard to said premises described above to be searched as being used in conjunction with the sale and delivery of the contolled [sic] substance marijuana.
"3. That a confidential informant has provided information based upon his/her personal knowledge that he/ she has purchased a substance represented to him or her to be marijuana at the home and residence herein described within the last 24 hours, and that such informant spoke with his/her personal knowledge and has made admissions against his or her penal interest.
"4. That the above informant’s information is further corroborated by another seperate [sic] distinct confidential informant who has in the last two months provided information that he/she had purchased a substance represented to him/her to be marijuana at the same home and residence described above and as indicated by the informant in paragraph 3, and that this informant has provided to the Hesperia Police Department information in the past which has proven reliable.
”5. That the informants herein fear for their personal safety and therefore, remain confidential.”
The people appeal from the circuit court’s order suppressing the evidence and dismissing the case. We have concluded that the affidavit is fatally deficient and, therefore, we affirm.
I
We must first determine the appropriate stan dard of review. In People v Iaconis, 29 Mich App 443, 454; 185 NW2d 609 (1971), this Court set forth the correct standard of review of affidavits under the federal constitution:
"[A] reviewing court will sustain a magistrate’s determination of probable cause so long as there is a substantial basis to conclude that narcotics are probably present * *
In addition to the sufficiency-of-the-affidavit issue, the Iaconis Court also addressed the defendants’ claim that there was insufficient evidence to support the magistrate’s decision to bind them over for trial. In the course of rejecting this claim, the Court referred to the well-established rule that "[t]his Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause”. 29 Mich App 462.
In People v Thomas, 86 Mich App 752, 759; 273 NW2d 548 (1978), this Court lifted the foregoing language out of context from the Iaconis Court’s discussion of the bind-over issue, and applied it to a determination of the sufficiency of an affidavit:
"Quoting further from Iaconis, supra, p 462, it was concluded that " 'This Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause.’ (Citations omitted.)”
It is quite apparent that the Iaconis Court did not employ an abuse-of-discretion standard in reviewing the sufficiency of an affidavit. Moreover, analysis of the four cases relied upon by the laconis Court in support of its reference to an abuse-of-discretion standard reveals that all four cases involved a bind-over issue, and not the sufficiency of an affidavit. Thus, it is abundantly clear that the Thomas abuse-of-discretion standard is, to say the least, of rather dubious parentage.
Surprisingly enough, at least four panels of this Court have uncritically accepted the Thomas Court’s misreading of laconis. See People v Price (On Remand), 91 Mich App 328, 332; 283 NW2d 736 (1979); People v Atkins, 96 Mich App 672, 678; 293 NW2d 671 (1980); People v William Heiler, 97 Mich App 636, 638; 296 NW2d 10 (1980), and People v Dinsmore, 103 Mich App 660, 674; 303 NW2d 857 (1981). Thus has a mountain of authority risen upon a foundation of sand.
The time has come for this Court to debunk Thomas and its illegitimate progeny. The abuse-of-discretion standard of review, although proper in the context of bind-over issues, should not be employed by courts reviewing a magistrate’s determination of the sufficiency of an affidavit.
A magistrate has a considerable advantage over a reviewing court with respect to a bind-over decision, since such a decision typically requires an assessment of the credibility of the witnesses who testify at the preliminary hearing. While a reviewing court must work from a cold record, a magistrate has the opportunity to observe the demeanor of witnesses._
In contrast, a magistrate is no more qualified than a reviewing court to determine whether probable cause may be found within the four corners of an affidavit. Such a determination is essentially a question of law. Although a magistrate’s finding that an affidavit establishes probable cause is entitled to deference in marginal cases, see Iaconis, supra, p 457, and should normally be sustained where a substantial basis exists for such a finding, an "abuse of discretion” standard would undermine the Fourth Amendment’s command that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation * * *”.
Thus, it is apparent that the Thomas abuse-of-discretion standard is wrong as a matter of policy, and also as a matter of precedent. We conclude that where a magistrate’s finding that an affidavit establishes probable cause is not supported by a sufficiently substantial basis, the magistrate’s decision shall be reversed even if it does not constitute a clear abuse of discretion.
II
We turn now to an assessment of the sufficiency of the affidavit before us in the case at bar. Paragraph 1 merely establishes the reliability of the affiant. Paragraph 5 merely attempts to excuse the affiant’s failure to identify the informants. Paragraph 2 is worthless; no probative value can be assigned to a police department’s unsupported and unspecified "information, suspicions [and] investigations”. Thus, if probable cause is to be found, it must be found in ¶¶ 3 and 4.
Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), established a two-prong test for determining probable cause when an informant is used. First, the affidavit must sufficiently provide the underlying circumstances to allow the magistrate to judge independently whether or not the drugs are presently where they are alleged to be. Second, sufficient underlying circumstances must establish the informant’s credibility or the reliability of the information. Under Aguilar, ¶ 3 is deficient in at least two respects. First of all, the confidential informant did not state that he had purchased marijuana at the premises described in the affidavit but, rather, "a substance represented to him * * * to be marijuana”. Secondly, the informant did not state that he had observed other quantities of marijuana in the residence in addition to the amount he had allegedly purchased. Thus, the informant gave no concrete indication that any marijuana remained at the premises after his departure.
Finally, ¶ 3 completely fails Aguilar’s "second prong”, since the affidavit provides no indication of the informant’s reliability. Although the affidavit states that the informant had made "admissions against his * * * penal interest”, the affiant does not specify the nature of those damaging admissions. Presumably the good officer was referring to the informant’s admission that he had purchased marijuana. However, although a statement against penal interest may be weighed by a magistrate in assessing an informant’s credibility, see United States v Harris, 403 US 573; 91 S Ct 2075; 29 L Ed 2d 723 (1971), not every statement against penal interest is sufficiently trustworthy to be considered in this regard. Rather, a magistrate may base his assessment of credibility on a statement against penal interest only where the statement "so far tended to subject [the informant] to * * * criminal liability * * * that a reasonable person in his position would not have made the statement unless he believed it to be true”. MRE 804(b)(3). Thus, an affiant may not establish an informant’s credibility merely by stating in a conclusory fashion that the informant has made statements against his penal interest; rather, the affiant must specifically identify any such statements and must also specify the circumstances under which the" statements were made. Since ¶ 3 supplies no ba sis for the magistrate to assess the credibility of the informant, it is insufficient to establish probable cause.
Paragraph 4 is also deficient. Once again, the informant did not state that he had purchased marijuana, but only that he had purchased a substance represented to be marijuana. More fundamentally, the informant did not state when he had purchased the substance. The affidavit states only that the information about the purchase was supplied within the last two months; the affidavit says nothing about the time of the purchase. Moreover, even if the purchase had been made and the information supplied contemporaneously, the two-month lapse rendered the information "stale” and, therefore, worthless.
We also harbor considerable doubt over whether a pro forma conclusory statement to the effect that an unnamed informant has "provided * * * infor mation in the past which has proven reliable”, without more, is a sufficient basis for a magistrate to determine that the informant is credible. The affiant should state the nature of the information provided in the past, and the manner in which it had been proven reliable. The affiant should also inform the magistrate whether any such past information had proven unreliable.
We conclude that ¶ 4 does not provide a sufficient basis for the magistrate’s determination of probable cause. Nor do ¶¶ 2, 3, and 4, considered together, provide a sufficient basis for the magistrate’s finding. An affiant may not establish probable cause by setting forth unreliable information and then "corroborating” it with additional unreliable information.
The evidence seized by the police was obtained in violation of the Fourth Amendment to the United States Constitution. The circuit court correctly suppressed the evidence and dismissed the case.
The judgment of the circuit court is affirmed.
We expressly decline to decide whether the state constitution requires a more rigid standard of review.
People v Dellabonda, 265 Mich 486; 251 NW 594 (1933); People v Davis, 343 Mich 348; 72 NW2d 269 (1955); People v Marklein, 358 Mich 471; 101 NW2d 348 (1960); People v O’Leary, 6 Mich App 115; 148 NW2d 516 (1967).
We observe that Price and Thomas were decided by the same panel.
We do not suggest, however, that these cases necessarily reached the wrong result; we merely submit that an incorrect standard of review was employed.
This is particularly true in light of the Supreme Court’s puzzling refusal to overrule the "abuse of discretion” definition set forth in Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959):
"Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but definance thereof, not the exercise of reason but rather of passion or bias.”
Of course, it can be argued that the standard employed makes little difference. Nevertheless, when an appellate court states that "the trial court’s decision will not be reversed absent a clear abuse of discretion”, it generally means that "the trial court’s decision will not be reversed”. This Court must not avoid its solemn responsibility to enforce the warrant clause by pretending that it has the power to correct only the most egregious of errors. See People v Talley, 410 Mich 378, 396-397; 301 NW2d 809 (1981) (Levin, J., concurring):
"Spalding’s hyperbolic statement leaves the impression that a judge will be reversed only if it can be found that he acted egregiously — the result evidencing 'perversity of will’, the 'defiance [of judgment]’, 'passion or bias’. To repeatedly invoke this overstatement leads lawyers and judges to believe that a discretionary decision is virtually immune from review and leads appellate courts to view any challenge to such a decision as essentially unfounded. Repetition of this statement is simplistic and misleading, and should not be indulged in by this Court or any other.”
Of course, the affiant’s failure to identify the informants enhances the possibility that the informants are actually nonexistent.
Under certain circumstances a so-called statement against penal interest may be of very doubtful reliability. We offer the following illustration: The police conduct an illegal search and arrest a suspect for a drug violation. Aware that they have no hope of obtaining a conviction, the police inform the terrified suspect that they will "go easy” on him (or that they will not press charges) if he will "finger” his supplier. Any statement made by an informant in such a position is hardly a statement against penal interest; rather, such a statement actually tends to shield the informant against criminal liability. Moreover, we cannot assume that a reasonable man in such a position would betray the confidence of his actual supplier, who is often a close friend; instead, it appears likely that such an informant, confident that he will remain anonymous, may make the best of a difficult situation by falsely accusing an enemy whom he feels may be in possession of some drugs. It also seems likely that an informant who is unaware of the present location of his supplier, or who produced the drugs himself, would be motivated to feed the police false information in the hope of obtaining leniency. Thus, a statement made by a suspect in custody will often have little or no probative value, regardless of whether it can be technically characterized as a "statement against penal interest”.
Even if the affiant had specified that the informant’s "admission against penal interest” was the fact that he had purchased marijuana, this would clearly be insufficient to establish the informant’s credibility. Otherwise, any informant who claimed that he had purchased marijuana could automatically be deemed "credible”. | [
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] |
M. J. Kelly, P.J.
On August 14, 1981, officers of. the Michigan State Police, acting pursuant to a search warrant, seized several carnival games, accessories, prizes, and money at the Branch County Fair in Coldwater. Thereafter, a petition was filed in circuit court for forfeiture of the items seized. At the forfeiture hearing, defense counsel conceded the search warrant was properly executed and that one of the games, "Rat Roulette”, was a gambling device subject to forfeiture. Following the hearing, the circuit court found that the "Rat Roulette” game and one of two duck pond games were gambling devices and were therefore subject to forfeiture. All other seized property was ordered returned to its owners. From this judgment, petitioner appeals as of right.
I
Several games are involved in this action. One is a helix (spiral) game. The game consists of a seven-to eight-foot steel frame, which houses a spiral cage. The cage contains balls the size of pool balls. Some balls are printed with numbers and others bear dots. When in operation, the balls rotate in the game’s spiral cage. A number of cords are attached to the cage. The player pays one dollar and pulls one of the cords. As a cord is pulled, a gate opens and one of the balls drops out. If the ball is imprinted with a dot, the player wins a prize. If the ball bears a number, reference must be made to a conversion chart. Some ball numbers are on the chart, others are not. If the number appears on the chart, the ball number is converted to a different point number. A certain number of points is required from the conversion chart in order to win a prize. In addition, certain ball numbers require the player to increase his payment for each pull of the cord but also increase the value of his possible prize.
Special Agent Garry Goddard, of the Attorney General’s Economic Crime Division, played the game at the fair on August 13, 1981. Goddard testified he could not see the numbers or spots on the balls as they quickly spun in the cage. When a ball dropped, the operator would call off the ball number while making sure the player kept his eyes on the conversion chart. Goddard saw no winners while playing the game. At the invitation of the game’s operator, Goddard was allowed to place side bets while another player played the game.
Terry Hampton, a self-acclaimed skilled helix player, testified that skill was involved in playing the helix game, as one could indeed see the numbers and dots on the balls as they rotated by the cage openings. With proper timing, the player could cause a desired ball to drop from the cage. According to Hampton, he can get the red dot balls "almost every time”. Based on this testimony, the trial court found the helix game to be "a game of skill”.
Another one of the games is known as ring-a-pin or the pin game. While mechanically different, ring-a-pin is similar in operation to the helix game. There are five rows of clothes pins, 20 to 30 pins per row, with the rows placed in an ascending step fashion. On the back of each pin is a number. Mirrors behind the pins allow the player to see some of the pin numbers. The player pays one dollar to attempt to throw a rubber mason jar type ring around one of the pins. If the ring lands squarely around a pin, the operator indicates the number on the pin, which is then compared to a conversion chart. The chart assigns a certain number of stars to some of the pin numbers. After the police seizure, it was discovered that some pins had three-digit numbers while the conversion chart covered only two-digit numbers. If a player obtained 100 stars, he won his choice of a stuffed animal or $20. One pin number, however, required the player to pay an extra dollar for each throw of the ring. In return, the value of the stuffed animal or cash prize was increased by $20. Agent Goddard testified that he quit the game after spending $30 and attaining only 98 stars, that most of the numbers on the pins were out of sight, and that, when he insisted, the operator showed him a pin, but kept a thumb over one of the numbers. The trial court found that manipulation by the operator of the game took away any element of skill, but found the ring-a-pin game to be "a game of skill”, since skill was necessary to throw the rubber ring over a particular pin.
Also seized by the State Police were a number of claw machines. These are crane-type devices with claws attached to the end of a chain. At the bottom of the machine are prizes and tokens for better prizes. After a dime is deposited, the crane rotates and stops at a random position. The claw then falls and the player can operate levers to try to close the claw around a prize or token. The trial court found that whether any prize was grabbed with the claws depended on the skill of the operator.
The final carnival games seized were two duck ponds. A duck pond consists of toy ducks circulating in a water trough. For $.50 per play or one dollar for three plays, the player selects a duck. Each duck has a number or letter imprinted on its bottom. Each number or letter corresponds to a prize and the player, therefore, receives some prize for each duck selected. One of the two ponds had a mirror on the bottom of its trough which allowed the ducks’ numbers to be reflected. Agent Goddard testified, however, that the water was too murky for the numbers to be clearly viewed. The trial court ruled this duck pond to be a "game of skill”. The other duck pond did not have a mirror and, therefore, the ducks’ numbers were not visible. The trial court ruled that this duck pond did not involve skill.
The trial court held that only games of chance, or what it termed per se gambling devices, were subject to forfeiture. Thus, the trial court ordered that only the rat roulette game, conceded by defense counsel to be a gambling device, and the duck pond without a mirror were subject to forfeiture. The state was ordered to return the other games and accompanying prizes, accessories, equipment, and money to their owners. On appeal, respondents do not contest the validity of the court’s ordering the rat roulette and the unmirrored duck pond games forfeited.
II
The statutory scheme governing gambling is set forth at MCL 750.301-750.315; MSA 28.533-28.547. In addition, lotteries are governed by the provisions of MCL 750.372-750.376; MSA 28.604-28.608. MCL 750.301-750.306; MSA 28.533-28.538 provide penal sanctions for gambling and the keeping of gambling apparatus. MCL 750.308; MSA 28.540 [§ 308] provides for the issuance of search warrants and MCL 750.308a; MSA 28.540(1) [§ 308a] allows for the destruction or other disposition of property seized pursuant to § 308.
In the instant case, criminal proceedings were not initiated against those owning or operating the carnival games. Rather, the state acted only pursuant to §§ 308 and 308a in obtaining a search warrant, seizing the games and related apparatus, and applying for an order of forfeiture of the seized items. Our resolution of this appeal, therefore, requires a determination of what types of property may be seized and destroyed under §§ 308 and 308a.
Section 308 is not a model of legislative clarity. Indeed, although the entire section is only two sentences long, the first sentence contains 382 words. In order to apply the statute to the case at bar, we focus on the following pertinent language:
"If a person makes oath before [a] * * * magistrate that he has probable cause to believe and does believe that a * * * place is used * * * for the * * * registering of bets upon any race, game, contest, act or event, and that persons resort thereto for any such purpose, such magistrate * * * shall, if he be satisfied there is reasonable cause for such belief, issue a warrant commanding * * * any * * * police officer to enter and search such * * * place, and if any * * * memoranda of any bet, or other implements, apparatus or material of any form of gaming be found in said place, to take into his custody all the implements, apparatus or material of gaming as aforesaid, including any articles, equipment, furniture, loud speakers and amplifying apparatus, adding machines, calculators, money changers and boxes and money found therein or in or on gambling apparatus, or material used in connection with or the promotion of gambling or a gambling place * * *. The provisions of law relative to destroying or other disposition of gaming articles shall apply to all articles and property seized as herein provided for.”
Under this language, once probable cause is established that any place is being used for the registering of bets upon any race, game, or contest, a search warrant may be issued and, if any memorandum of any bet or any form of gaming is found in the place searched, the police officers may confiscate the gambling apparatus and any materials used to promote the gambling or the gambling place. Section 308a then allows for a court to order the destruction or other disposition of any articles or property lawfully seized under such a warrant.
The broad provisions in these sections allow for much more than the destruction of only games of pure chance. Any items used to promote gambling or a gambling place may be seized and ordered destroyed. It is unnecessary to determine whether the games under consideration are games of skill, chance, or a combination thereof. Once a place is used for the "registering of bets upon any race, game, contest, act or event” the statutory seizure and forfeiture provisions may be invoked. The words race, game, and contest do not refer only to games purely of chance. Rather, these words cover games of skill as well. Indeed, "contest” is defined as a "struggle for victory or superiority”. The Random House Dictionary of the English Language (New York: Random House, 1971). A struggle for superiority necessarily involves games of skill. Similarly, we fail to see how the term "race” could reasonably be limited to events involving only pure chance.
Section 308 authorizes the seizure of gambling apparatus whenever a place is used for the registering of bets upon a contest. "Betting in common speech means the putting of a certain sum of money or other valuable thing at stake on the happening or not happening of some uncertain event.” Shaw v Clark, 49 Mich 384, 388; 13 NW 786 (1882). Even though a game may involve skill, when the eventual end is anything but certain the risking of money or property on its outcome subjects the game and related apparatus to seizure and forfeiture.
This construction of §§ 308 and 308a is consistent with the entire legislative scheme on gambling. For example, § 303 makes it a misdemeanor for any person to keep or maintain any "game of skill or chance, or game partly of skill and partly of chance, used for gaming”. Under this section, it is "not necessary to determine whether the games under consideration are games of skill or games of chance, or games partly of skill and partly of chance as the statute makes no distinction in either kind of game”. Henry v Kuney, 280 Mich 188, 192; 273 NW 442 (1937). Gambling occurs when there is the chance for profit if the player is skillful and lucky. See Henry, supra, p 193.
Only one portion of the legislative gambling scheme deals with per se gambling devices, i.e., machines that can be used for nothing else except gambling. Section 302 provides, among other things, that any person "who shall suffer or permit on any premises owned, occupied or controlled by him any apparatus used for gaming or gambling” shall be guilty of a misdemeanor. This part of § 302 deals not with gambling itself but with the mere keeping of a gambling device, regardless of whether it was ever used for gambling. The proper construction of this limited prohibition, therefore, is that only games that are for gambling use only, and therefore are gambling devices per se, are prohibited from being possessed. People v Lippert, 304 Mich 685, 690-691; 8 NW2d 880 (1943).
We find, therefore, that the lower court erred in determining that only games involving solely chance were subject to forfeiture under §§ 308 and 308a. Once it was established that bets were made on any game of skill or chance, the game and any related apparatus were subject to forfeiture. _
III
We now apply the law to the facts of the case at bar. Bets were registered on both the helix game and the ring-a-pin game. Unrebutted testimony established that the players had to continually risk one dollar after another on the anything-but-certain chance that they would win $20 or more in return. In addition, others were allowed to place side bets on whether the players would be successful. Whether the games involved any degree of skill is irrelevant. Sections 308 and 308a allow for the seizure and forfeiture of the helix game, the ring-a-pin game, and all related score sheets, prizes, equipment, money, and furniture.
The claw machines involved the risking of only an initial $.10 stake on the chance that luck and skill could return the player a prize. Since the player’s money was put at stake on the happening of an uncertain event, the game involved betting. Even when the pay off is in merchandise rather than money, gambling is involved. See Eastwood Park Amusement Co v Mayor of East Detroit, 325 Mich 60, 67; 38 NW2d 77 (1949). Thus, the claw machines and all related prizes, equipment, money, and furniture are subject to seizure and forfeiture.
The final game we must consider is the duck pond which had a mirror on the bottom of its trough which reflected the numbers on the bottom of the ducks. In this game, every duck selection resulted in a prize. Testimony differed at trial as to whether the water was too murky for the ducks’ numbers to be seen. The trial court did not make a finding on this question, but stated only that "[t]he mere fact that the water may be murky in the duck pond game containing the mirror is not the fault of the device itself’. If the numbers on the ducks were clearly visible to the players and they could select the number they desired, the game would not involve betting. The resulting prize would be a certain event and, therefore, the paying of the cost to play could not be considered betting. If, however, the duck numbers could not be seen and the prizes varied in value, the duck pond would involve betting. The value of the prize returned for the players’ stake would be an uncertain event. Thus, whether the mirrored duck pond and its accessories are subject to forfeiture requires a factual determination on the visibility of the ducks’ numbers.
We reverse the circuit court’s order denying the state’s forfeiture petition and remand for further proceedings. In addition to making a factual determination as to whether the value of the prize received in the mirrored duck pond game was certain, the trial court shall provide for the destruction or other disposition of the other seized items.
Reversed and remanded.
We note that the Legislature did carve out an exception to the gambling laws when it enacted the Michigan Exposition and Fairgrounds Act, MCL 285.161 et seq.; MSA 12.1280(51) et seq. The act allows concessionaires who are licensed by the Department of Natural Resources to conduct games of skill as defined by MCL 285.172; MSA 12.1280(62) and provides that such games will be exempted from the gambling laws. MCL 285.173; MSA 12.1280(63). However, this act applies only to state fairs. The appropriate remedy for such a problem must come from the Legislature. We direct the parties’ attention to this act only to point out that the fact that the Legislature passed a specific section relating to concessionaire games of skill at state fairs and exempted such games, when licensed, from the gambling laws lends further support to our conclusion that such games, when not licensed, are considered gambling. | [
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T. R. Thomas, J.
This Court granted an application for leave to appeal to defendant-appellant, City of Detroit, from an order of the trial court denying appellant’s motion for summary judgment under GCR 1963, 117.2(1). Appellant’s motion for summary judgment claimed plaintiff-appellee had failed to state a claim upon which relief could be granted and was based upon appellant’s claim of governmental immunity from suit. Plaintiff-appellee had sued for damages on the allegation that the appellant negligently performed a housing inspection that was required by appellant’s ordinance prior to sale.
Essentially, on December 7, 1977, plaintiff-appellee, Ronald Brand, contracted to purchase a house in the City of Detroit from defendant-appellees Fred and Ruth Hartman. On June 2, 1977, the house was inspected by an employee of the City of Detroit pursuant to Ordinance 124-H, §§ 12-7-1 et seq., as amended, of the Municipal Code of the City of Detroit for a fee of $92.50. Thereafter, plaintiff-appellee brought suit against defendantappellees, the Hartmans and Real Estate One, Inc., seeking damages because screens and storm windows were missing, contrary to the purchase agreement, and because the house suffered from water leaks which cause structural damage. By first amended complaint, appellant was added as a defendant and damages were sought against it on the theory that it negligently examined the house and issued a certificate of approval which failed to list the building’s defects. The plaintiff-appellee alleged no intentional act on the part of the appellant.
Further, after denying the appellant’s motion for summary judgment, the trial court allowed plaintiff-appellee to file a second amended complaint. The second amended complaint added that the ordinance, by imposing an inspection upon the seller of a house, requiring him to repair any disclosed defects and charging a fee of $92.50 before a sale is allowed, is an invasion of the private housing market and not a governmental function. Again, no intentional act on the part of the appellant was alleged.
The ordinance in question, Ordinance 124-H, §§ 12-7-1 et seq., as amended, of the Municipal Code of the City of Detroit makes it unlawful to sell or transfer, or act as a broker for a sale or transfer, a dwelling unless a valid certificate of approval is tendered to the purchaser or transferee at the time of sale or transfer. There are exceptions to this general rule which allow for a waiver of the tender of the certificate of approval and delay the obtaining of the certificate of ap proval until the occupancy of the dwelling. A dwelling is defined as a one- or two-family residential structure.
Exempt from the provisions of the ordinance are sales or transfers between governmental agencies; sales or transfers where the purchaser or transferee have occupied the dwelling for the 12 months immediately prior to the sale or transfer, except in the instance where the sale or transfer is by exercise of an option to purchase; sales or transfers prior to the effective date of the ordinance; and, sales and transfers for which a signed purchase agreement was entered into prior to the effective date of the ordinance.
The ordinance further directs the Buildings and Safety Engineering Department of the City of Detroit to issue such a certificate of approval only after an inspection. The inspections are to be performed consistently with an inspection guideline to be prepared by the department and approved by the city council. The department is also charged with setting reasonable fees for inspections made pursuant to the ordinance.
The record in this case does not disclose the list of inspection guidelines to be used in inspections relating to the enforcement of the ordinance but by the terms of the ordinance they are to constitute the complete scope of repairs required for the issuance of the certificate or to be noted in an inspection report. From a reading of the transcript of the motion for summary judgment they include an inspection of the electrical units, the plumbing, the heating, and the general condition of the house.
The appellant raises three issues, the central of which is whether the specific act complained of, namely the negligent performance of a housing inspection for which a fee is charged, is an act in the exercise or discharge of a governmental function, rendering appellant immune to tort liability. The others are whether the trial court erred in denying appellant’s motion for summary judgment on the ground that the plaintiff failed to plead facts in avoidance of governmental immunity and whether the trial court erred in allowing plaintiffappellee to file a second amended complaint after appellant filed for leave to appeal.
As to the central issue, MCL 691.1407; MSA 3.996(107) provides:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from, tort liability as it existed heretofore, which immunity is affirmed.” .
The meaning of the term "governmental function” as used in the foregoing statute was considered by the Michigan Supreme Court in the cases of Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978).
As this Court stated in the case of Willis v Nienow, 113 Mich App 30, 33-34; 317 NW2d 273 (1982):
"No clear majority position emerged in Parker and Perry, but this Court has consistently applied the test formulated by Justice Moody who emerged as the 'swing vote’ in those cases. See, for example, Cronin v Hazel Park, 88 Mich App 488; 276 NW2d 922 (1979); Ross v Consumers Power Co, 93 Mich App 687; 287 NW2d 319 (1979); Rubino v Sterling Heights, 94 Mich App 494; 290 NW2d 43 (1979), and Davis v Detroit, 98 Mich App 705; 296 NW2d 341 (1980). Justice Moody agreed with Justices Fitzgerald, Kavanagh, and Levin that the statutory term 'governmental function’ is subject to judicial refinement and that the term is limited to those activities which are of essence to governing. However, Justice Moody’s view of that test differs from that of his colleagues. See Parker, supra, p 200.
" 'To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.’ ”
The ordinance subject to scrutiny in this case is not a construction, housing, or health code. Not all of the dwellings in the City of Detroit are subject to its provisions; it is not pervasive as to the quality or condition of Detroit housing; it concerns only one- and two-family residential structures at the time of sale or transfer. It is a pre-sale inspection ordinance which requires that an inspection report and certificate of approval be issued, for a reasonable fee, at sale or transfer except a sale or transfer by lease, mortgage, gift, devise, bequest or lien foreclosure. Although the list of inspection guidelines referred to in the ordinance is not a matter of record, it can only be assumed that such guidelines concern themselves with the objectives of a housing or health ordinance which would be enforceable at all times and not just at the time of sale or transfer.
This inspection ordinance is not of the essence of governing in any sense of the expression. Private persons or organizations could and regularly do inspect one- and two-family residential structures offered for sale or transfer to achieve a variety of objectives not the least of which is to determine the presence of termites. Further, such pre-purchase housing inspections have historically been totally within the prerogative of the residential home buyer.
We would, therefore, hold that the inspections done pursuant to this ordinance and the certificates of approval issued pursuant thereto are not of essence to governing. Such activity is nongovernmental even under Justice Moody’s broader statement of the governmental essence test.
In the case of Ross v Consumers Power Co, 93 Mich App 687, 698-699; 287 NW2d 319 (1979), this Court said:
"In reaching our decision, we are mindful of the strong policy considerations which call for the limitation of governmental immunity. Certainly today’s social climate has resulted in a relationship between government and the individual where it can no longer be said with conviction that 'it is better that an individual should sustain an injury than the public should suffer an inconvenience’. Russell v Men of Devon, 2 Durnford & East’s Term Rep 667, 673; 100 Eng Rep 359, 362 (1788). Rather, we would agree with Professor Borchard, who already long ago said, 'justice and a respect for the rights of the individual demand that Government, national, state and municipal * * * adopt necessary legislation to admit the legal responsibility of the State or city for the torts of its officers’. Borchard, Governmental Liability in Tort, 34 Yale L J 1, 3 (1924). Professor Cooperrider’s understanding of the manner in which the doctrine of governmental immunity first found its way into the law of this state should lead us to recognize that its legitimate application calls for careful analysis, and that such analysis should result in the doctrine being the exception rather than the rule: that we should speak in terms of governmental liability rather than governmental immunity.” (Footnote omitted.)
The trial judge did not err in determining that the specific act complained of, namely the negligent performance of a housing inspection pursuant to the ordinance in controversy in this case for which a fee is charged, is not an act in the exercise or discharge of a governmental function, rendering appellant immune to tort liability.
The second and third issues presented in this case for decision can be disposed of in singularity. It is true that a plaintiff must allege facts in avoidance of governmental immunity. Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976). However, in the present case, no governmental immunity existed as a matter of law or as a matter of fact.
Further, in Rubino v Sterling Heights, 94 Mich App 494, 499; 290 NW2d 43 (1979), we said:
"GCR 1963, 118.1 permits a party to amend its pleading by leave of court, which 'shall be freely given when justice so requires’. Although the decision whether to allow amendment is within the trial court’s discretion, Leahy v Henry Ford Hospital, 84 Mich App 719, 722; 271 NW2d 34 (1978), as a general rule, leave should be granted absent unfair prejudice to the opposing party. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 71 Mich App 177; 247 NW2d 589 (1976), rev’d on other grounds 400 Mich 184; 253 NW2d 646 (1977).”
No such unfair prejudice to the opposite party exists as a result of the filing of the second amended complaint.
Affirmed and remanded.
Bronson, J., concurred. | [
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J. H. Gillis, J.
We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.
Affirmed.
Plaintiff commenced this action in tort against defendants Lowe and Moffet for damage to his "beautiful oak tree” caused when defendant Lowe struck it while operating defendant Moffet’s automobile. The trial court granted summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1). In addition, the trial court denied plaintiff’s request to enter a default judgment against the insurer of the automobile, defendant State Farm Mutual Automobile Insurance Company. Plaintiff appeals as of right.
The trial court did not err in granting summary judgment in favor of defendants Lowe and Moffet. Defendants were immune from tort liability for damage to the tree pursuant to § 3135 of the no-fault insurance act. MCL 500.3135; MSA 24.13135.
The trial court did not err in refusing to enter a default judgment against State Farm. Since it is undisputed that plaintiff did not serve process upon State Farm in accordance with the court rules, the court did not obtain personal jurisdiction over the insurer. GCR 1963, 105.4. | [
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Danhof, C.J.
Defendant pled guilty to possession of a controlled substance, pentazocine, in violation of MCL 333.7403(2)(b); MSA 14.15(7403)(2)(b), on January 16, 1981. He was sentenced to serve a term of from one to two years in prison. Defendant appeals his conviction as of right.
Defendant, relying on the decision of another panel of this Court in People v Turmon, 117 Mich App 345; 323 NW2d 698 (1982), claims that his conviction must be reversed because the Legislature has never declared possession of pentazocine to be a crime.
The controlled substances provisions of the Public Health Code, MCL 333.7101 et seq.; MSA 14.15(7101) et seq., do not contain an exhaustive list of the substances which are controlled thereby. On the contrary, the code purports to grant authority to the State Board of Pharmacy (board) to add to, to delete from, or to reschedule all substances listed in the code. MCL 333.7201; MSA 14.15(7201). In 1979, the board classified pentazocine as a schedule 3 controlled substance. 1979 AC, R 338.3120(2).
In a split decision, Turmon, supra, held that the statutory provision granting power to the Board of Pharmacy to classify controlled substances constituted an unlawful delegation of legislative power to an administrative agency. In so ruling, the Court noted that another panel of this Court had earlier reached the opposite conclusion. People v Uriel, 76 Mich App 102; 255 NW2d 788 (1977). A majority of the members of the Turmon Court decided that the Uriel Court had reached the wrong conclusion.
It has long been established that the Legislature is without authority to delegate its legislative powers to an administrative agency. See King v Concordia Fire Ins Co, 140 Mich 258; 103 NW 616 (1905); Michigan C R Co v Michigan R R Comm, 160 Mich 355; 125 NW 549 (1910). The reason for this prohibition is grounded in two distinct concepts. First, the constitutional requirement concerning the separation of powers precludes the Legislature from delegating its power to make law. Const 1963, art 3, § 2. Secondly, due process requires that the exercise of legislatively conferred powers be carried out in a manner which is neither arbitrary nor capricious. Westervelt v Natural Resources Comm, 402 Mich 412; 263 NW2d 564 (1978); Osius v City of St. Clair Shores, 344 Mich 693; 75 NW2d 25 (1956). Despite the fact that the "delegation” doctrine has as its source two distinct constitutional considerations, the focus for determining whether either is violated requires an examination of the standards the Legislature has employed to govern an agency’s exercise of the power which it has been granted. Westervelt, supra.
In deciding the issue of whether the standards are sufficiently definite to satisfy the constitutional requirement of the separation of powers, we are governed by the test announced in Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976):
"While no hard and fast rule exists for determining whether a given statute has provided sufficient standards, a number of guiding principles have evolved in Michigan jurisprudence to assist in making a determination in this case.
"First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Argo Oil Corp v Atwood [274 Mich 47, 53; 264 NW 285 (1935)].
"Second, the standard should be 'as reasonably pre cise as the subject matter requires or permits’. Osius v St. Clair Shores, 344 Mich 693, 698; 75 NW2d 25; 58 ALR2d 1079 (1956).
"The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. The 'various’ and 'varying’ detail associated with managing the natural resources has led to recognition by the courts that it is impractical for the Legislature to provide specific regulations and that this function must be performed by the designated administrative officials. People v Soule, 238 Mich 130, 140; 213 NW 195 (1927). See United States v Grimaud, 220 US 506; 31 S Ct 480; 55 L Ed 563 (1910).
"Third, if possible the statute must be construed in such a way as to 'render it valid, not invalid’ as conferring 'administrative, not legislative’ power and as vesting 'discretionary, not arbitrary, authority’. Argo Oil Corp v Atwood, supra, 53.”
After examining the standards contained in this act, we cannot agree with the Turmon Court’s conclusion that the Legislature has left to the State Board of Pharmacy the legislative task of defining what constitutes a crime. The standards contained in the statute include § 7202, which provides:
"In making a determination regarding a substance, the administrator shall consider all of the following:
"(a) The actual or relative potential for abuse.
"(b) The scientific evidence of its pharmacological effect, if known.
"(c) The state of current scientific knowledge regarding the substance.
"(d) The history and current pattern of abuse.
"(e) The scope, duration, and significance of abuse.
"(f) The risk to the public health.
"(g) The potential of the substance to produce psychic or physiological dependence liability.
"(h) Whether the substance is an immediate precursor of a substance already controlled under this article.”
Section 7203 provides:
"(1) After considering the factors enumerated in section 7202, the administrator shall make findings with respect thereto and promulgate a rule controlling the substance if the administrator finds the substance has a potential for abuse.
"(2) If the administrator designates a substance as an immediate precursor, a substance which is a precursor of the controlled precursor is not subject to control solely because it is a precursor of the controlled precursor.”
Sections 7206 and 7208 then provide:
"Sec. 7206. (1) A 7 member scientific advisory commission is created to serve as a consultative and advisory body to the administrator in all matters relating to the classification, reclassification, addition to, or deletion from, all substances presently classified as controlled substances in schedules 1 to 5, or substances not presently controlled or yet to come into being. The scientific advisory commission shall be composed of 2 physicians to be appointed by the director of public health; 2 pharmacists to be appointed by the director of licensing and regulation; the chief of the crime detection laboratory of the department of public health; the director of mental health or his or her designee; and the director of the department of state police or his or her designee. The physician and pharmacist appointments shall be for 2-year terms.
"(2) The administrator shall receive the recommenda tions of the scientific advisory commission pursuant to administration over the controlled substances for inclusion in or exclusion from schedules 1 to 5, especially in the implementation of scheduled substances changes as provided in section 7201, except that the administrator is not bound by recommendations of the scientific advisory commission.
"Sec. 7208. (1) Authority to control under this article, does not extend to distilled spirits, wine, malt beverages, or tobacco.
"(2) The administrator shall exclude a nonnarcotic substance from a schedule if the substance, under the federal food, drug, and cosmetic act of 1938, 21 U.S.C. 301 to 392, and the laws of this state, may be lawfully sold over the counter without a prescription.” See also MCL 333.7204; MSA 14.15(7204); MCL 333.7227; MSA 14.15(7227); MCL 333.7229; MSA 14.15(7229).
Finally, the act lists five schedules of substances which the Legislature has determined to be in need of control and provides additional standards concerning the schedules into which additional substances are to be placed.
In our opinion, these sections, read together, provide the board with standards which are as reasonably precise as the subject matter dictates. It is readily apparent that decisions relating to the dangers associated with a particular drug require a great deal of administrative expertise, expertise which individual legislators cannot be expected to possess. Furthermore, in view of the constantly changing nature of the subject matter, it is impractical to expect the Legislature to continuously revise the list of controlled substances. These lists must be supplied by designated administrative officials. See Dep’t of Natural Resources v Seaman, supra, 309.
We do not find persuasive the conclusion stated in Turmon, supra, that the delegation is per se invalid merely because the controlled substance provision of the health code are penal in nature. Many statutes which grant administrative authority to a regulatory agency, statutes which have been upheld by the courts in the face of separation of powers challenges, have involved penal provision. See Westervelt, supra; People v Soule, supra; Automotive Service Councils of Michigan v Secretary of State, 82 Mich App 574; 267 NW2d 698 (1978), app dis 439 US 973; 99 S Ct 554; 58 L Ed 2d 645 (1978).
In Turmon, supra, the Court intimated that a majority of other jurisdictions which have examined the Uniform Act upon which MCL 333.7101 et seq. is based have ruled it unconstitutional. Our research has led us to reach the opposite conclusion. The courts of most jurisdictions which have adopted this act, and which have ruled on the issue of whether it constitutes an improper delegation of legislative authority, have upheld it. See Ex parte McCurley, 390 So 2d 25 (Ala, 1980); Ward v State, 248 Ga 60; 281 SE2d 503 (1981); State v Kellogg, 98 Idaho 541; 568 P2d 514 (1977); Samson v State, 27 Md App 326; 341 A2d 817 (1975); State v Boyajian, 344 A2d 410 (Me, 1975); State v King, 257 NW2d 693 (Minn, 1977); State v Thompson, 627 SW2d 298 (Mo, 1982); State v Lisk, 21 NC App 474; 204 SE2d 868 (1974); Montoya v O’Toole, 94 NM 303; 610 P2d 190 (1980); People v Einhorn, 75 Misc 2d 183; 346 NYS2d 986 (1973); State v Sargent, 252 Or 579; 449 P2d 845 (1969); State v Peloquin, 427 A2d 1327 (RI, 1981); State v Ed wards, 572 SW2d 917 (Tenn, 1978); Threlkeld v State, 558 SW2d 472 (Tex Cr App, 1977).
It should also be noted that the Uniform Act was patterned after the Federal Comprehensive Drug Abuse Prevention and Control Act, 21 USC 801 et seq. In the federal act, Congress has delegated to the Attorney General authority which is similar to the authority given to the board under our act. 21 USC 811. The federal courts have uniformly ruled that such delegation is constitutional. See United States v Davis, 564 F2d 840 (CA 9, 1977), cert den 434 US 1015; 98 S Ct 733; 54 L Ed 2d 760 (1978); United States v Erwin, 602 F2d 1183 (CA 5, 1979), cert den 444 US 1071; 100 S Ct 1014; 62 L Ed 2d 752 (1980); United States v Barron, 594 F2d 1345 (CA 10, 1979), cert den 441 US 951; 99 S Ct 2180; 60 L Ed 2d 1056 (1979); United States v Gordon, 580 F2d 827 (CA 5, 1978), cert den 439 US 1051; 99 S Ct 731; 58 L Ed 2d 711 (1978); United States v Alexander, 673 F2d 287 (CA 9, 1982); United States v Pastor, 557 F2d 930 (CA 2, 1977).
Therefore, for the reasons announced earlier, and because the overwhelming number of jurisdictions, both federal and state, which have ruled on this issue have upheld similar legislation, we find that this act satisfies the principle of the separation of powers.
With respect to the issue of whether this delega tion satisfies due process, the following test announced in Westervelt, supra, 443, applies:
"In summary, we rule that a delegation of legislative power to an administrative agency is constitutionally valid when:
"(2) for purposes of satisfying the Due Process Clause of our Constitution, safeguards, including 'standards’, exist, thereby assuring that the public will be protected against potential abuse of discretion at the hands of administrative officials; and, if the 'standards’ afforded provide little or no actual due process protection, a court should, in balance, determine whether a sufficient totality of safeguards exists.”
Our examination of the statute satisfies us that the safeguards employed in the act satisfy the requirements of due process. As noted earlier, the standards employed are sufficiently definite. Furthermore, § 7201 requires that, in administering the act, the board must comply with requirements of the Administrative Procedures Act (APA). MCL 24.201 et seq.; MSA 3.560(101) et seq. See also MCL 333.7231; MSA 14.15(7231). Finally, the board’s high degree of proximity to the elective process (appointment by the governor and confirmation by the senate) insures that the public is not left unprotected from uncontrolled, arbitrary power in the hands of remote administrative officials. MCL 333.16121; MSA 14.15(16121); MCL 333.17721 et seq.; MSA 14.15(17721) et seq. See Westervelt, supra, 448.
In view of the foregoing, we find that the controlled substances provisions of the Public Health Code satisfy both constitutional requirements "essential to a 'delegation of legislative power to an administrative agency’ ”. Westervelt, supra, 449.
Defendant next complains that due process was violated because he was not afforded fair notice of the conduct proscribed. In Turmon, supra, the Court held that because the substance pentazocine is listed as a controlled substance in an administrative code, rather than in the statute, defendant could not be charged with notice that his conduct was proscribed. We disagree.
In order to satisfy the requirements of due process, it must be shown that defendant had fair notice that his conduct was unlawful. Lanzetta v New Jersey, 306 US 451; 59 S Ct 618; 83 L Ed 888 (1939). The possession of pentazocine is conduct which is clearly proscribed by 1979 AC, R 338.3120(2). The regulation was adopted in accordance with requirements of the APA, and pursuant to the authority of the Public Health Code. The code makes clear reference to the fact that substances which are controlled thereby are subject to reclassification by the Board of Pharmacy pursuant to the requirements of the APA. MCL 333.7201; MSA 14.15(7201). Furthermore, the APA requires that any such classification be published in the State Administrative Code. MCL 24.246; MSA 3.560(146). Since this regulation was published well in advance of defendant’s action, defendant cannot complain that he was without notice that the conduct was proscribed. See State v King, supra; State v Edwards, supra.
We also reject defendant’s claim that the action taken by the board violated Const 1963, art 4, § 25. The action taken by the board did not constitute a statutory amendment. Rather, it constituted the promulgation of a rule pursuant to the authority granted by statute.
Defendant finally contends that his conviction must be reversed because his guilty plea was induced by promises that his mother would not be prosecuted if he pled guilty. Our examination of the record fails to convince us that the trial court erroneously concluded that defendant’s plea was voluntary. People v James, 393 Mich 807, 808; 225 NW2d 520 (1975); People v Perry, 119 Mich App 98; 326 NW2d 437 (1982).
Affirmed.
MCL 333.7202; MSA 14.15(7202).
MCL 333.7203; MSA 14.15(7203).
MCL 333.7206; MSA 14.15(7206).
MCL 333.7208; MSA 14.15(7208).
MCL 333.7211; MSA 14.15(7211) through MCL 333.7220; MSA 14.15(7220).
We note that the courts in a minority of jurisdictions have ruled that the act constitutes an unlawful delegation of legislative authority to an administrative agency. See State v Rodriguez, 379 So 2d 1084 (La, 1980); Howell v State, 300 So 2d 774 (Miss, 1974); State v Krego, 70 Ohio Misc 14; 433 NE2d 1298 (1981); State v Johnson, 84 SD 556; 173 NW2d 894 (1970); State v Gallion, 572 P2d 683 (Utah, 1977). However, we point out that the Turmon Court’s reliance on Sundberg v State, 234 Ga 482; 216 SE2d 332 (1975), is misplaced since the statute which was struck down in that case was the predecessor to the controlled substances act. See Ward v State, supra. | [
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Per Curiam.
Shortly before 7 a.m., two Michigan state troopers observed a vehicle speeding in the southbound lane of 1-69. Since the state troopers were in the northbound lane, they attempted to cross the median strip in order to pursue the speeder. The police car, however, got stuck in the median. Shortly thereafter, a truck driver stopped and had a conversation with the state troopers about the best method of extracting the police car. The truck driver ended up parking his vehicle on the left shoulder of the southbound lane, where it extended from two to six feet into the traveled portion of the southbound lane. In other words, although the truck was partly on the road, it was not blocking the road.
Although the police officers called their station to report that their car was stuck, they did not ask for a wrecker. They also did not set out flares by the truck. A number of vehicles passed them without difficulty. However, around 7 a.m., a vehicle containing four passengers and traveling apf proximately 61 miles an hour smashed into the back of the truck without braking. Two passengers in the car died, and two were severely injured. We will henceforth refer to these parties or their respective representatives as the plaintiffs.
Plaintiffs filed the instant action against the truck driver and the trucking company for which he works. These defendants filed a third-party complaint against the Michigan State Police and the two state troopers who had been present at the scene. The state troopers filed a motion for summary judgment on the ground of governmental immunity. The trial court ruled that the state troopers were not entitled to governmental immunity and, moreover, that there existed a factual issue with respect to whether the state troopers were guilty of wilful and wanton misconduct. The state troopers thereupon filed an application for leave to appeal to this Court, which was granted.
On appeal, the state troopers contend that the trial court erred in ruling that they were not entitled to governmental immunity. We agree. The state troopers were acting within the scope of their employment at the time of the accident, and their allegedly negligent acts were not ultra vires. The ministerial-discretionary standard is dead. See Gaston v Becker, 111 Mich App 692; 314 NW2d 728 (1981) , and Shwary v Cranetrol Corp, 119 Mich App 736; 326 NW2d 627 (1982).
The state troopers were clearly engaged in a governmental fuction. Moreover, we cannot agree with plaintiffs that the alleged failure of the state troopers to police the scene of the disabled vehicle amounts to a nuisance in avoidance of governmental immunity.
For the foregoing reasons we reverse and remand to the trial court with instructions to dismiss as to the police officers. We need not address the defendants’ contention that the trial court erred in finding that there existed a genuine issue of fact as to whether the state troopers were guilty of wilful and wanton misconduct, since conduct falling short of an intentionally wrongful act is not an exception to governmental immunity.
Reversed. Costs to defendants. | [
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Per Curiam.
On February 5, 1981, plaintiff, Riverside Insurance Company, filed a complaint for declaratory judgment against defendants, Rosemary Kolonich, David Taylor, and Mary Jo Taylor, seeking a judgment that it did not have a duty to defend or pay damages in connection with a pending negligence action brought by Kolonich against plaintiffs insureds, David and Mary Jo Taylor. On July 16, 1981, the trial court granted plaintiffs motion for summary judgment on the basis that the incident which gave rise to the negligence claim was excluded from the homeowner’s insurance coverage furnished by plaintiff to the Taylors. From the grant of summary judgment, defendants appeal as of right.
The record discloses that Rosemary Kolonich filed a complaint on October 22, 1980, claiming that she suffered injuries when she slipped and fell on the Taylors’ driveway on December 17, 1979. Plaintiff initially agreed to represent the Taylors in the negligence matter under the homeowner’s insurance policy, but, after taking the deposition of Rosemary Kolonich, it filed the instant action based on the "business pursuit” exception to the policy.
The special exclusion provision of the policy stated that coverage does not apply:
"(a)(1) to any business property of an Insured or any business pursuits in connection with a business solely owned by an Insured or owned by a partnership of which an Insured is a partner other than (a) premises occupied for office, professional, private school, or studio occupancy specifically added by endorsement, and (b) activities therein which are ordinarily incidental to non-business pursuits * * *.”
Plaintiffs theory was that the Taylors were engaged in the continuous business for profit of "firing ceramics for others at their premises”. Thus, it contended that the injuries allegedly sustained by Rosemary Kolonich were excluded from insurance coverage, since they arose out of a business conducted on the Taylors’ premises.
Mary Jo Taylor’s deposition was taken in this matter on March 3, 1981. Therein* she testified that: (1) she owned a kiln for firing ceramics, over 100 ceramic molds, and more than 100 pieces of greenware, (2) she had been interested in ceramics for approximately five years and* at the time of the deposition, taught a weekly ceramics class at her home, which was comprised of five students, (3) at the time of Rosemary Kolonich’s injury, she had approximately ten students, (4) a $2 fee was charged per class, (5) pieces of greenware were sold by her, primarily to class members, (6) a portion of her ceramics activities was devoted to firing green-ware, where she charged one-half of the amount the person paid for the piece, (7) as a result of considering her ceramics functions as a hobby rather than a business venture, she neither reported any income on her tax returns nor possessed a sales tax license, and (8) her husband’s involvement in the activity was limited to carrying molds and greenware to her visitors’ automobiles.
In its summary judgment motion, plaintiff maintained that no genuine issue existed in relation to any material fact, inasmuch as the Taylor depositions established that they were not entitled to defense coverage under the policy. Defendant Kolonich maintains that the depositions established that the ceramic activites were conducted by Mrs. Taylor as a hobby, not for a profit, or, alternatively, that a question of fact exists in regard to the issue. Additionally, Rosemary Kolonich con tends, on appeal that, even if the activities constituted a "business pursuit”, plaintiff is estopped from disclaiming coverage because it undertook for many months defense of the claim on the Taylors’ behalf.
In State Mutual Cyclone Ins Co v Abbott, the insurer sought to absolve itself from extending coverage to its insured under a business-pursuit exception of the insurance policy. The insured, who was a part-time blacksmith, allegedly caused the horse that he was shoeing to strike and injure the horse’s owner. In reversing the trial court’s holding that the insured was not engaged in a business pursuit when the injury occurred, we set forth the following definition for "business pursuit”:
" 'To constitute a business pursuit, there must be two elements: first, continuity, and secondly, the profit motive; as to the first, there must be a customary engagement or a stated occupation; and, as to the latter, there must be shown to be such activity as a means of livelihood, gainful employment, means of earning a living, procuring subsistence or profit, commercial transactions or engagements.’ ”
Another case involving an insurance company’s attempt to avoid extending coverage under the business-pursuit exception is Randolph v Ackerson, where a farmer, the insured party, in an isolated transaction, purchased an old barn with the intention of selling the barn wood. A purchaser of the barn wood was injured while loading the wood onto a truck. We upheld the trial court’s ruling that the exception to the insured’s policy of insurance was not applicable because one of the two elements of the two-pronged business-pursuit test was not satisfied, namely, that the insured’s involvement in the activity of selling barn wood was not of a customary or continuous nature.
In summary judgment motions based upon GCR 1963, 117.2(3), the trial court must examine the pleadings, admissions, depositions, affidavits, and other documentary evidence to determine whether a genuine issue of fact exists as to any material fact. A trial court should give the benefit of any reasonable doubt to the party opposing the summary judgment, and it must be satisfied that the nonmovant’s claim or defense cannot be supported at trial as a result of a deficiency which cannot be overcome.
In the matter at bar, a question of fact was raised by the depositional testimony of Mrs. Taylor regarding whether her activities constitute a hobby or an enterprise conducted with a profit motive. Accordingly, we conclude that summary judgment was improvidently granted.
We also note that, in its order granting summary judgment on plaintiffs petition for declaratory relief, the trial court did not address defendant Kolonich’s claim that plaintiffs assumption of a defense on behalf of the Taylors constituted a waiver or estoppel of its right to deny insurance coverage based on an alleged policy exclusion. Nor did the trial court rule on the question of whether defendant David Taylor is entitled to a defense and liability protection, even if his wife, Mary Jo Taylor, is excluded from insurance coverage.
In Security Ins Co of Hartford v Daniels, this Court approved of an insurance company seeking a declaratory judgment in regard to its obligation to defend its insured. Therein, we stated:
"The Court, in Meirthew, supra [Meirthew v Last, 376 Mich 33; 135 NW2d 353 (1965)], was concerned that the insurance company, by defending the insured in the principal suit but not informing him of specific defenses upon which it later intended to rely to avoid liability, denied the insured a fair and timely opportunity to protect his rights. In the instant case, however, the very reason for bringing the declaratory judgment action was to decide those issues prior to trial and, consequently, avoid prejudicing the rights of any insured party. Thus, because the instant declaratory judgment action is a suitable alternative to a 'reservation of rights’ letter, Meirthew, supra, is not applicable to the instant case.” (Footnote omitted.)
In 44 Am Jur 2d, Insurance, § 1408, pp 348-349, an insurer’s obligation to defend is discussed:
"Where doubt exists as to the obligation of an insurer to defend, the doubt should be resolved in the insured’s favor. The determination of an insurer’s duty to defend may turn on the construction of an exclusionary clause.
"If the insurer desires to show that the claim against the insured is based on facts excluded from the policy coverage and the insurer refuses to defend, it must do so at its peril, and if the insurer guesses wrong, it must bear the consequences of its breach of contract. For this reason, where the insurer is doubtful about its liability and wishes to retain all its rights and at the same time protect itself against the claim that it has unjustifiably refused to defend a suit against the insured, it may give a so-called 'nonwaiver’ notice to the insured or attempt to enter into a 'nonwaiver’ agreement with the insured by which it reserves all its rights to assert later the policy noncoverage. Another remedy available to the insurer is to secure an adjudication of nonliability by way of a declaratory judgment. Such a judgment settles definitely the question of its duty to defend. ” (Footnotes omitted, emphasis added.)
In the matter at bar, a hearing is required to determine if plaintiffs involvement in the defense of the negligence claim against its insured operates as an estoppel or waiver of its right to disclaim coverage.
Reversed and remanded.
GCR 1963, 521. For a discussion of the declaratory judgment remedy, see Demorest v DiPentima, 118 Mich App 299; 324 NW2d 634 (1982).
52 Mich App 103; 216 NW2d 606 (1974).
52 Mich App 108. For a detailed article on interpretation of business pursuits exclusions, see Anno: Construction and application of "business pursuits" exclusion provision in general liability policy, 48 ALR3d 1096 (1973).
108 Mich App 746; 310 NW2d 865 (1981).
Revitzer v Trenton Medical Clinic, 118 Mich App 169; 324 NW2d 561 (1982); Lipton v Boesky, 110 Mich App 589, 598; 313 NW2d 163 (1981); 7 Callaghan’s Mich Pleading & Practice (2d ed), § 43.05, pp 14-15.
Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973); 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 362.
70 Mich App 100; 245 NW2d 418 (1976).
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Per Curiam.
On December 9, 1980, plaintiff, Vicki Miller, filed an automobile negligence suit in the Ingham County Circuit Court against three defendants, Robin Sue Foster, Jeffrey Lynn Smith, and Ted A. McKenzie. On June 6, 1981, the trial court granted summary judgment in favor of defendants Smith and McKenzie under GCR 1963, 117.2(3). From this order, plaintiff appeals as of right.
In her complaint, plaintiff alleged that she sustained personal injuries as a result of a collision which occurred on October 9, 1979, between a motorcycle operated by defendant Smith and owned by defendant McKenzie on which she was a passenger and an automobile owned and operated by defendant Foster.
After plaintiffs deposition was taken on March 27, 1981, defendants Smith and McKenzie brought a motion for summary judgment. In their motion, defendants asserted that plaintiff admitted in her deposition that defendant Smith, the operator of the motorcycle on which she was a passenger, was not negligent and that defendant Foster, the operator of the automobile, was solely responsible for the accident.
After hearing oral arguments on June 6, 1981, the trial court granted the motion of defendants Smith and McKenzie, finding that no issue of material fact existed concerning the lack of negligence on the part of Smith and McKenzie.
Our review of plaintiffs deposition discloses that, in response to questioning from the attorney for defendants Smith and McKenzie, she testified that defendant Foster, rather than defendant Smith, caused the accident and that defendant Smith did not operate the motorcycle in a negligent manner. However, during another portion of this examination, plaintiff offered an account of defendant Smith’s alleged negligence:
"Q. [defense attorney for Smith and McKenzie]: Do you think he was negligent in this accident?
”A. Yeah.
"Q. What do you claim that he did wrong, Mr. Smith?
’A. Well, he should, you know, he could have been more careful on the bike, you know; I don’t know.
”Q. Specifically what could he have done to have been more careful on the bike?
"A. I don’t know, just, you know, somebody’s fault, the accident.
"Q. I understand that you were sitting on the bike and you got hurt and you weren’t, apparently, driving the bike; and you, apparently, weren’t driving the automobile, but you have alleged in this court that you intend to prove that Mr. Smith did something wrong, okay? Can you — do you know of anything that he did wrong, in your judgment, having known him, having been a motorcycle operator yourself for many years — I assume you have also driven a motorcycle at night at times — having not been intoxicated yourself, I assume. Were you intoxicated that night?
"A No.
”Q. Can you tell me what Mr. Smith did wrong, what you think he did wrong?
"A. Could have been just a little bit more careful on turning.
”Q. Specifically- what should he have done that, according to—
'A. I know I heard the brakes squeal, he had to hear the brakes too, and he turned without caution, you know, with that squealing behind us.”
Additionally, in her answer to plaintiffs interrogatory number 14, defendant Foster described the details of the collision which occurred between her automobile and Smith’s motorcycle:
"14. I was traveling eastbound on Jolly Road, and was approaching the expressway overpass just west of Collins Road, when the motorcycle that was traveling in front of me slowed down. The motorcycle did not signal any type of turn. At this time I also slowed down. We were halfway between the overpass and Collins Road when the motorcycle slowed down even more, and pulled over to the right shoulder of the road. I slowed down to approximately 30 mph, and when I came upon the motorcycle, it pulled out in front of my car. I turned to the left to avoid hitting the motorcycle, but it turned in the same direction and ran into my car.”
In summary judgment motions grounded upon GCR 1963, 117.2(3), the trial court must examine the pleadings, admissions, depositions, affidavits, and other documentary evidence to ascertain whether a genuine issue of fact exists as to any material fact. A trial court should give the benefit of any reasonable doubt to the party opposing the summary judgment, and it must be satisfied that the nonmovant’s claim or defense cannot be supported at trial as a result of a deficiency which cannot be overcome.
In Miller v Miller, the Supreme Court delineated the general rule that summary judgment motions are inappropriate in negligence actions:
"It is because the question of negligence is a question of fact and not of law and because its existence depends upon conformance with or violation of standards of behavior peculiarly within the special province of a jury to determine, that the summary judgment procedures of GCR 1963, 117.2(3), rarely will be applicable to a common-law negligence case. Exceptions, of course, may be found — such as where no duty of care can be proved. In such circumstances, assuming there 'is no genuine issue as to any material fact’ relevant to the existence of an asserted duty, the trial court may determine as a matter of law that no cause for action exists. But this is not such a case.”
In applying the foregoing principles to the matter at bar, we are unable to conclude that there was not any genuine issue of fact raised regarding the alleged negligence of defendants Smith and McKenzie. Plaintiff’s deposition and the interrogatory answers of defendant Foster provide support for the allegations contained in plaintiff’s complaint that defendant Smith operated his motorcycle negligently.
We are not unmindful of the case primarily relied upon by defendants on appeal and in the trial court, Gamet v Jenks, in support of their contention that plaintiff’s depositional testimony amounted to an admission that defendant Smith was not negligent. Unlike the factual setting in Gamet, where the plaintiff therein "clearly, intelligently and unequivocally” testified in a fashion conclusively binding against his cause of action, the plaintiff in the instant case testified in a conflicting manner in her deposition. Moreover, the answer of defendant Foster to plaintiff’s interrogatory previously referred to serves to raise a question of fact in relation to the negligence of defendant Smith. Accordingly, we find that summary judgment was improvidently granted.
Reversed and remanded._
Defendant McKenzie’s liability is premised upon the owner’s liability statute, MCL 257.401; MSA 9.2101.
Revitzer v Trenton Medical Center, Inc, 118 Mich App 169; 324 NW2d 561 (1982); 7 Callaghan’s Michigan Pleading & Practice (2d ed), § 43.05, pp 14-15.
Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973).
373 Mich 519, 524; 129 NW2d 885 (1964). See, also, Snyder v King, 199 Mich 345, 357; 165 NW 840; 1 ALR 893 (1917); 57 Am Jur 2d, Negligence, §§ 6-9, pp 340-350; 2 Restatement Torts, 2d, § 328c, pp 154-156.
38 Mich App 719, 726-727; 197 NW2d 160 (1972).
See, also, Braman v Bosworth, 112 Mich App 518, 520-523; 316 NW2d 255 (1982), for a detailed analysis of the proposition set forth in Garnet v Jenks, supra. In Braman, the plaintiff testified in her deposition that defendant Dolen was not negligent; however, another witness, defendant Bosworth, testified in his deposition that Dolen was, in fact, operating his automobile in a negligent manner. The matter at bar contains facts which militate more strongly than Braman against summary judgment: evidence was raised outside of plaintiffs complaint by another party (defendant Foster) and plaintiffs depositional testimony was conflicting. | [
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Per Curiam.
Defendant pled guilty to larceny by trick. MCL 750.356; MSA 28.588. He appeals by right.
On various occasions, an individual apparently posed as a runner for a Detroit hotel and bilked some armed forces recruits out of the money, telling them he must take it for safekeeping. An undercover police officer, assigned to discover the perpetrator of this scam, was among those recruits when defendant made his pitch for their money. Once the officer and the recruits had enclosed their money in an envelope for defendant, the officer arrested him.
Although the defendant contends that his guilty plea lacked a factual basis, the plea in fact presents a jurisdictional defect. A claim as to a jurisdictional defect is not waived by a guilty plea. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), cert den 429 US 951 (1976).
The defendant was originally charged with obtaining property by false pretenses. The trial court, however, granted the defendant’s motion to quash the information for failing to allege facts sufficient to support the charge. The trial court found — and both parties agreed — that the undercover agent did not rely on the defendant’s misrepresentations in turning over his money. Because such reliance is an element of the offense of obtaining property by false pretenses, the court quashed the information. Nevertheless, the court allowed the people to add a count of larceny by trick, later accepting the defendant’s plea to that charge.
The trial court and the parties apparently believed that, while an element of the crime of obtaining property by false pretenses, reliance is not necessary to the offense of larceny by trick. Although these two offenses are distinct, both require that the victim part with his property in reliance on the defendant’s misrepresentations. See People v Long, 409 Mich 346, 350-351; 294 NW2d 197 (1980). The distinction between the two offenses is stated in People v Martin, 116 Mich 446, 450; 74 NW 653 (1898):
"If, by trick or artifice, the owner of property is induced to part with the possession to one who receives the property with felonious intent, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but right of property also, the offense of the party obtaining the thing will not be larceny, but that of obtaining the goods by false pretences.”
The victim’s intention to part only with possession of his property — not his failure to rely on the defendant’s misrepresentations — converts the offense of false pretenses into larceny by trick. Both require reliance. The trial court found that the officer did not rely on the defendant’s misrepresentations when he turned over the money. We see no reason to disturb the court’s finding. Obviously, the undercover officer, aware of the defendant’s ploy, was not "tricked” by the defendant. After this ruling the people could have proceeded no further with their prosecution of larceny by trick because, as a matter of law, the people could not have established all the elements of that offense. Accordingly, we reverse the defendant’s conviction and order him discharged.
Reversed. | [
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Cynar, P.J.
On December 11, 1981, plaintiff George Syrkowski and defendant Corinne Apple-yard filed a joint application for emergency leave to appeal from the Wayne County Circuit Court. The application for emergency leave to appeal was from the November 25, 1981, order granting the motion for accelerated judgment brought by intervenor-defendant Michigan Attorney General and the December 7, 1981, final order dismissing plaintiff’s paternity action. On February 22, 1982, application for leave to appeal was granted; and the claim of appeal was filed on February 25, 1982. The case was argued during the June, 1982 term. We affirm the decision of the trial court.
On June 8, 1981, George Syrkowski filed a complaint pursuant to § 4(f) of The Paternity Act, MCL 722.714(f); MSA 25.494(f). Syrkowski alleged that he had reason to believe that defendant Corinne Appleyard was pregnant with a child conceived by him on or about March 23, 24, or 25, 1981, in the City of Dearborn Heights, Michigan. It was alleged that the complaint was filed during Mrs. Appleyard’s pregnancy. Mr. Syrkowski requested an order of filiation pursuant to § 7(a) of The Paternity Act, MCL 722.717(a); MSA 25.497(a), and entry of his name as the natural father on the child’s birth certificate.
On June 23, 1981, Mrs. Appleyard answered admitting all the allegations. She also requested an order of filiation and entry of Mr. Syrkowski’s name as the natural and legal father on the child’s birth certificate.
Pursuant to § 33 of the Michigan Adoption Code, MCL 710.33; MSA 27.3178(555.33), Mr. Syrkowski filed a notice of intent to claim paternity on July 9, 1981. That same month, the parties filed a proposed consent order of filiation and scheduled a hearing on July 24, 1981, for the entry of that order. The proposed consent order of filiation stated the interests of the child and all parties would be best served by a determination by the circuit judge that: (1) Mr. Syrkowski is the natural and legal father of the child to be born to Mrs. Appleyard in December, 1981, (2) Mr. Syrkowski be awarded full custody and responsibility for the child, (3) Mr. Syrkowski’s name be entered as the father on the child’s birth certificate, and (4) the child bear the surname Syrkowski.
In support of the motion for entry of the consent order of filiation, Mr. Syrkowski submitted the affidavit of Mrs. Appleyard and her husband, Roger Appleyard, and the affidavit of Dr. Warren J. Ringold, M.D. Dr. Ringold in his affidavit stated:
"That on March 23, 24, and 25, 1981 in his professional offices, he inseminated Corinne Appleyard with the semen of George Syrkowski, and subsequent thereto she became and is pregnant; and that in his professional medical opinion, George Syrkowski is the father of the child or children to be born to Corinne Appleyard as a result of the pregnancy * * *.”
The Appleyards in their affidavit stated:
"That Roger Appleyard and Corinne Appleyard voluntarily abstained from having sexual intercourse for a period of six weeks prior to March 23, 1981.
"That Corinne Appleyard was artificially inseminated with the semen of George Syrkowski by Warren J. Ringold, M.D., on March 23, 24, and 25, 1981.
"That Roger Appleyard and Corinne Appleyard voluntarily abstained from sexual intercourse on the above insemination dates and for a period of four weeks subsequent to March 25, 1981.
"That Corinne Appleyard affirmatively states she did not have sexual intercourse with any person during the above-mentioned ten week period.”
No hearing was held on July 24, 1981, on the motion for entry of the consent order of filiation.
On November 9, 1981, the Michigan Attorney General filed a notice of intervention, a motion for accelerated judgment pursuant to GCR 1963, 116.1, a brief in support of that motion, and a notice of hearing for November 13, 1981.
In his motion, the Attorney General alleged that the circuit court did not have jurisdiction over Mr. Syrkowski’s action pursuant to The Paternity Act as the action involved a "surrogate mother” arrangement. The Attorney General alleged that Mr. Appleyard was the legal father of the child because he was married to Mrs. Appleyard when she conceived the child and he consented to the artificial insemination. The Attorney General argued that, under the above facts and pursuant to two statutes, MCL 333.2824(6); MSA 14.15(2824)(6), and MCL 700.111(2); MSA 27.5111(2), Mr. Appleyard must be deemed the father of his wife’s child.
Mr. Syrkowski replied to the motion and filed a brief in opposition to accelerated judgment on November 13, 1981. In support of this reply, Mr. Syrkowski submitted Mr. Appleyard’s April 22, 1981, statement of nonconsent. In that statement, Mr. Appleyard said:
"I, Roger A. Appleyard, husband of Corinne A. Apple-yard, who is to become a surrogate mother for an unknown man, acknowledge the existence of Public Act 356 of 1978, Section 2824(6) which provides, 'A child born to a married woman as a result of artificial insemination, with consent of her husband, is considered to be the legitimate child of the husband and wife.’ I expressly revoke and withhold my consent for any artificial insemination of my wife in connection with the surrogate arrangements and recognize that by doing so I cannot be declared or considered to be the legal father of said child.”
Mrs. Appleyard filed an answer opposing the motion for accelerated judgment. In support of her answer, she submitted the affidavit of her hus band. Mr. Appleyard reaffirmed his statement of nonconsent to his wife’s artificial insemination.
Mr. Appleyard filed a brief in opposition to the motion for accelerated judgment on November 23, 1981, also incorporating by reference Mr. Syrkowski’s brief in its entirety.
In his November 25, 1981, opinion granting the Attorney General’s motion for accelerated judgment, the trial judge found that neither the law nor the facts in this case support the Attorney General’s argument that a child conceived and born of Mrs. Appleyard during the marriage is conclusively presumed to be the legitimate child of her husband. However, the trial court also observed The Paternity Act was enacted to impose financial responsibility for illegitimate children upon those who fathered them and to protect the children from becoming a public charge.
It was the opinion of the trial court that the relief requested in Mr. Syrkowski’s petition was beyond the scope and purpose of The Paternity Act. Accordingly, the motion for accelerated judgment was granted.
Mrs. Appleyard gave birth to Theresa Mary Syrkowski on November 22, 1981, in Sinai Hospital of Detroit.
This action was not commenced as an adversary proceeding but was submitted to the trial court for approval of a consent order of filiation which Mr. Syrkowski, Mrs. Appleyard, and their respective counsel had approved as to form and content. The record does not contain a copy of the agreement entered into between Mr. Syrkowski and Mrs. Appleyard. Although the facts submitted for our consideration are limited, we infer that Mr. Syrkowski’s inducement for entering into this agreement with Mrs. Appleyard was based on the inability of Mr. Syrkowski and his wife to have children. We recognize the forces which motivate human beings seeking to have children. To assume Mr. Syrkowski’s intentions are a pure and a noble attempt to. fulfill the wish to have a child in his family is not sufficient for reaching a result in this appeal. In addition to determining the applicability of the legislation relied upon, we must consider the impact of this decision.
We agree with the trial court’s decision to permit intervention by the Attorney General. The issues raised by Mr. Syrkowski and Mrs. Apple-yard involve significant matters of state interest and public policy. It is noted that the child in this case has been without legal representation. Interest in the welfare of the child must continue to be of paramount importance to the people of this state.
It was the opinion of the trial court that the relief requested in Mr. Syrkowski’s petition was beyond the scope and purpose of The Paternity Act in light of the factual setting upon which the complaint was based.
The preamble to The Paternity Act, MCL 722.711 et seq.; MSA 25.491 et seq., provides:
"An Act to confer upon circuit courts jurisdiction over proceedings to compel and provide support of children born out of wedlock; to prescribe the procedure for determination of such liability; to authorize agreements providing for furnishing of such support and to provide for the enforcement thereof; and to prescribe penalties for the violation of certain provisions of this act.”
Statutes are to be construed as they were intended to be understood when they were passed. Wayne County Board of Road Comm’rs v Wayne County Clerk, 293 Mich 229; 291 NW 879 (1940). Courts have a duty to enforce unambiguous statutes as written. Scholten v Rhoades, 67 Mich App 736, 745; 242 NW2d 509 (1976).
The Paternity Act was enacted to provide for support of illegitimate children. Van Laar v Rozema, 94 Mich App 619; 288 NW2d 667 (1980); Tuer v Niedoliwka, 92 Mich App 694; 285 NW2d 424 (1979); Smith v Robbins, 91 Mich App 284; 283 NW2d 725 (1979), lv den 408 Mich 853 (1980). The purpose and intent of The Paternity Act is to provide support for a child "born out of wedlock”. No amendment to the act has altered the general purpose and intent of the act to the extent that it encompasses the circumstances in this case.
A question is raised whether "surrogate parent arrangements” are contrary to public policy. Public policy may be constitutionally, legislatively, or judicially declared. Public policy may also abide in the customs and conventions of the people. Skutt v Grand Rapids, 275 Mich 258, 264; 266 NW 344 (1936).
In Doe v Attorney General, 106 Mich App 169; 307 NW2d 438 (1981), lv den 414 Mich 875 (1982), a case involving a surrogate mother arrangement, this Court held that the trial court had properly granted summary judgment where the plaintiffs contemplated entering into an agreement whereby they would pay a third party $5,000 plus medical expenses to have a child by Mr. Doe. This Court wrote:
"While the decision to bear or beget a child has thus been found to be a fundamental interest protected by the right of privacy, see Maher v Roe, 432 US 464; 97 S Ct 2376; 53 L Ed 2d 484 (1977), we do not view this right as a valid prohibition to state interference in the plaintiffs’ contractual arrangement. The statute in question does not directly prohibit John Doe and Mary Roe from having the child as planned. It acts instead to preclude plaintiffs from paying consideration in conjunction with their use of the state’s adoption procedures. In effect, the plaintiffs’ contractual agreement discloses a desire to use the adoption code to change the legal status of the child — i.e., its right to support, intestate succession, etc. We do not perceive this goal as within the realm of fundamental interests protected by the right to privacy from reasonable governmental regulation.” (Emphasis added.) Doe, supra, pp 173-174.
While we do not decide whether surrogate mother contracts are against public policy, we conclude The Paternity Act’s purpose of providing support for children born out of wedlock does not encompass the monetary transaction proposed in this case.
We view the surrogate mother arrangements with caution as we approach an unexplored area in the law which, without a doubt, can have a profound effect on the lives of our people. The courts should not be called upon to enlarge the scope of The Paternity Act to encompass circumstances never contemplated thereby. Studied legislation is needed before surrogate arrangements are recognized as proposed under the facts submitted herein.
Affirmed.
N. J. Kaufman, J., concurred._
According to appellants’ factual statement, plaintiff, a childless married man, entered into an agreement with defendant, a married woman with two children. Defendant agreed to be artificially inseminated with plaintiff’s semen by a licensed physician. Upon birth of the child, plaintiff would have custody and defendant would receive $10,000 in addition to her medical expenses.
There is reason to believe that Mr. Syrkowski now has provisional custody of Theresa pursuant to §405 of the Probate Code, MCL 700.405; MSA 27.5405. That statute says:
"A parent or a guardian of a minor or legally incapacitated person, by a properly executed power of attorney, may delegate to another person for a period not exceeding 6 months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward and the power to release a minor ward for adoption.”
On reaching our decision our concern has included the ultimate effect upon the child Theresa. The Supreme Court was aware of the problem of identifying the legal parents of the child in Doe; the Court, however, denied leave to appeal. | [
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] |
R. A. Benson, J.
Plaintiff appeals as of right from an order of the trial court granting accelerated judgment pursuant to GCR 1963, 116.1(5) in favor of Jerome Goldman and dismissing plaintiff’s complaint as to him.
Plaintiff’s complaint alleges that she was involved in an automobile accident in 1977 in which the vehicle she was driving was struck in the rear by a vehicle driven by defendant Lanee Wexler. She alleged that Goldman (defendant) thereafter committed a battery against her and that, as a result thereof, the injuries she sustained in the automobile accident were aggravated. At the time the alleged battery occurred, plaintiff and defendant were married. The marriage was terminated by a judgment of divorce which was entered in October, 1978.
In granting defendant’s motion for accelerated judgment, the trial court relied on the fact that the divorce judgment provided that plaintiff was to receive a large proportion of the marital assets, several unexplained cash awards were made to her, and she was awarded $1,000 for medical expenses incurred during the marriage. Therefore, the court ruled that plaintiffs claim in this action was barred by the prior divorce judgment. We disagree.
It is clear that plaintiff was entitled to maintain an action against defendant for torts committed during their marriage. Hosko v Hosko, 385 Mich 39; 187 NW2d 236 (1971). Defendant contends that, because the property settlement which was incorporated into the divorce judgment took into ac count the fault of the parties and because plaintiff received at least partial compensation for the injuries she suffered as a result of the alleged battery, res judicata precludes this action.
In Howell v Vito’s Trucking & Excavating Co, 386 Mich 37, 41-42; 191 NW2d 313 (1971), the Supreme Court clarified the doctrine of res judicata as it relates to the separate principles of bar-merger and collateral estoppel. In so doing, the Court quoted from Restatement Judgments, § 68, pp 293-294:
" 'It is important to distinguish the effect of a judgment as a merger of the original cause of action in the judgment or as a bar to a subsequent action upon the original cause of action from its effect by way of collateral estoppel in a subsequent action between the parties based upon a different cause of action. If a judgment is rendered in favor of the plaintiff, the cause of action upon which the judgment is based is merged in the judgment, and the plaintiff cannot thereafter maintain an action on the original cause of action (see § 47). If the judgment is rendered in favor of the defendant on the merits, the original cause of action is barred by the judgment (see § 48). In either case the original cause of action is extinguished by the judgment no matter what issues were raised and litigated in the action, or even if no issues were raised or litigated and judgment was rendered by default.
" 'On the other hand, where the subsequent action is based upon a different cause of action from that upon which the prior action was based, the effect of the judgment is more limited. The judgment is conclusive between the parties in such a case as to questions actually litigated and determined by the judgment. It is not conclusive as to questions which might have been but were not litigated in the original action. This is the doctrine of collateral estoppel.’ ”
The prior action between these parties was one for divorce based on the Michigan no-fault divorce statute. MCL 552.1 et seq.; MSA 25.81 et seq. The present action is for a battery which is alleged to have occurred during the course of the marriage. Although we agree that fault continues to be a consideration in property division disputes in a divorce action, Davey v Davey, 106 Mich App 579, 581; 308 NW2d 468 (1981), we cannot agree, nor does defendant seriously contend, that both claims constituted but a single cause of action. Consequently, this claim is neither barred by nor merged into the divorce judgment. Howell v Vito’s Trucking Co, supra; Curry v Detroit, 394 Mich 327, 331; 231 NW2d 57 (1975).
Defendant’s reliance on collateral estoppel is also misplaced. From the record before us, it appears that, if the issue of whether defendant battered plaintiff was in fact decided in the prior proceeding, it was resolved that a battery did occur. If that is the case, defendant is now bound by that determination. Howell v Vito’s Trucking Co, supra, p 43; City of Mason v Mason State Bank, 63 Mich App 288; 234 NW2d 489 (1975). Therefore, defendant’s claim must fail.
There exists another reason why collateral estoppel cannot foreclose plaintiffs action. The property division which was incorporated into the divorce judgment resulted from a negotiated settlement agreed upon by the parties. It is well established in this jurisdiction that consent judgments are not to be given collateral estoppel effect. American Mutual Liability Ins Co v Michigan Mutual Liability Co, 64 Mich App 315, 326-327; 235 NW2d 769 (1975); Berar Enterprises, Inc v Harmon, 101 Mich App 216; 300 NW2d 519 (1980); Peterson v Lapeer, 106 Mich App 148, 155-156; 307 NW2d 744 (1981). See also Anno: Modern Views of State Courts as to Whether Consent Judgment is Entitled to Res Judicata or Collateral Estoppel Effect, 91 ALR3d 1170, 1183.
For the foregoing reasons, we find that plaintiff’s claim is not precluded by the prior judgment. If defendant intended that all claims which grew out of the marriage be thereafter foreclosed by the divorce judgment, a release providing for the same should have been incorporated into that judgment.
The above is not meant to suggest that plaintiff is entitled to double recovery. If the consideration which was given plaintiff as part of the property settlement constituted payment, at least in part, for the injuries she suffered as a result of the alleged battery, defendant may raise that issue by way of affirmative defense and attempt to obtain a setoff against any judgment plaintiff obtains in this action.
Our disposition of the issue discussed above renders it unnecessary for us to address the remaining issue raised by plaintiff.
Reversed and remanded. Costs to plaintiff. | [
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Per Curiam.
Plaintiffs brought this action to obtain rescission of a land contract on grounds of misrepresentation and inability of defendant vendors to convey clear title. Defendants counterclaimed for foreclosure. In the course of a nonjury trial, plaintiffs’ claim for rescission for misrepresentation was dismissed. Plaintiffs’ claim for rescission for defendants’ inability to convey clear title was held in abeyance and defendants were ordered to cure any defect in their title. The court found for defendants on the counterclaim and ordered that a judgment of forfeiture would enter unless plaintiffs paid defendants $4,000 in overdue payments within 90 days. Plaintiffs appeal by right.
Prior to trial, plaintiffs claimed that the judge was personally biased and prejudiced against their attorney and moved to disqualify the judge pursuant to GCR 1963, 912.2(2). After an evidentiary hearing, the motion was denied by a visiting judge who had been assigned by the state court administrator to hear it. Ordinarily, actual personal prejudice must be shown before disqualification is mandated. See, for example, Adams v Adams, 100 Mich App 1, 16; 298 NW2d 871 (1980). However, in Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1975), the Court said:
"A hearing before an unbiased and impartial decisionmaker is a basic requirement of due process.
"The United States Supreme Court has disqualified judges and decisionmakers without a showing of actual bias in situations where 'experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable’. Among the situations identified by the Court as presenting that risk are where the judge or decision-maker
"(1) has a pecuniary interest in the outcome;
"(2) 'has been the target of personal abuse or criticism from the party before him’;
"(3) is 'enmeshed in [other] matters involving petitioner * * or
"(4) might have prejudged the case because of prior participation as an accuser, investigator, factfinder or initial decisionmaker.” (Footnotes omitted.)
Here the record reveals a serious dispute between plaintiffs’ attorney and the trial judge over appointment of counsel for indigent criminal defendants. The dispute led plaintiffs’ attorney to file a complaint against the judge with the Judicial Tenure Commission which was still pending at the time of trial. The circumstances presented here thus fall within factors (2) and (3) of the test stated in Crampton. The circumstances suggested such a risk of actual prejudice on the part of the judge that due process required his disqualification even absent a showing of actual prejudice. See Auto Workers Flint Federal Credit Union v Kogler, 32 Mich App 257, 259; 188 NW2d 184 (1971), in which disqualification was found to be mandated in part because a grievance before the state bar filed by one of plaintiffs attorneys against the trial judge was pending, although the Court also referred to other, unspecified conduct of the trial judge. See also People v Lowenstein, 118 Mich App 475; 325 NW2d 462 (1982), in which the Court held that an arrest warrant was invalid because not issued by a neutral and detached magistrate where the magistrate in question had been sued by defendant. Our decision is not to be construed as suggesting that the trial judge was guilty of any actual impropriety.
To prevent the issue from arising on remand, we note that, contrary to the contention made in plaintiffs’ brief on appeal, the record reveals that the parties settled plaintiffs’ claim for rescission for defendants’ inability to convey clear title. We further note that the trial court file contains documents, dated subsequently to plaintiffs’ claim of appeal, which indicate that defendants’ counterclaim has also been settled.
Reversed and remanded for further proceedings before a different judge. | [
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Per Curiam.
Plaintiff brought this action to compel Iron River Cooperative TV Antenna Corporation and its officers to comply with the Michigan Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., and the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq. Plaintiff sought equitable relief, exemplary damages, costs, and attorney’s fees. Following the grant of accelerated judgment for defendants, plaintiff appeals by right.
The Freedom of Information Act defines "public body” as:
"(b) 'Public body’ means:
"(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.
"(ii) An agency, board, commission, or council in the legislative branch of the state government.
"(iii) A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof.
"(iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority.
"(v) The judiciary, including the office of the county clerk and employees thereof when acting in the capacity of clerk to the circuit court, is not included in the definition of public body.” MCL 15.232(b); MSA 4.1801(2)(b).
The Open Meetings Act defines "public body” as:
"(a) 'Public body’ means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement.” MCL 15.262(a); MSA 4.1800(12)(a).
We conclude, as did the trial court, that these acts do not apply to these defendants. Iron River Cooperative TV Antenna Corporation is not a municipal corporation as alleged in the plaintiffs brief and as named in the suit. The articles of incorporation, contained in the record, show that the corporation is a nonstock, nonprofit corporation and was not "created” by state or local authority as alleged. The articles of incorpoation indicate that the corporation was originally formed in 1957 by four individual incorporators. These four individuals were also the first four officers of the corporation. The first board of directors had 15 members. While some of these individuals were also members of the city commission, this does not establish that the corporation was either created by the city or that the organizations were one and the same. The fact that the corporation was given a nonexclusive franchise to operate within the city and was governed by a duly adopted city ordinance does not alone make it a public body empowered by the city. Cities have the power to regulate private companies through their ordinances. The granting of a license or a franchise does not make defendant corporation a public body. Finally, the corporation is funded by membership subscriptions and not by public funds.
In White v City of Ann Arbor, 406 Mich 554; 281 NW2d 283 (1979), the Michigan Supreme Court held that cable television systems are public utilities for the purposes of the Subdivision Control Act, MCL 560.101 et seq.; MSA 26.430(101) et seq. However, the Michigan Public Service Commission has in the past declined to assume jurisdiction over the cable television industry. White, p 578. In any event,
"[t]he fact that a utility is regulated by a state body does not convert that utility from a private utility company to a public body.” Dowden v Central Louisiana Electric Co, Inc, 368 So 2d 465, 467 (La App, 1979).
Defendant corporation is substantially similar to other cable television companies and airwave television stations. These are private companies, albeit heavily regulated by the FCC, and are not subject to the Freedom of Information Act or the Open Meetings Act.
We are persuaded that summary judgment, not accelerated judgment, should have been granted pursuant to GCR 1963, 117.2(1) for failure to state a claim upon which relief can be granted, and we uphold the trial court’s judgment. Gilbert v Grand Trunk W R Co, 95 Mich App 308, 315; 290 NW2d 426 (1980); American Fidelity Fire Ins Co v Barry, 80 Mich App 670, 679; 264 NW2d 92 (1978).
Affirmed. No costs, a public question. | [
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Allen, J.
In this appeal we are presented with a question regarding the procedure for appeals from a hearing referee to the Workers’ Compensation Appeal Board (appeal board). Where the hearing referee enters a judgment in favor of a plaintiff for two closed periods of disability but denies the plaintiff’s claim for continuing benefits for an alleged psychological disability, and where defendant employer thereafter files a claim for review challenging the award, and where plaintiff does not file a claim for review or otherwise cross-appeal the denial of her claim for continuing benefits but, in her brief responding to defendant’s claim for review, argues that the hearing referee erred in denying her claim for continuing benefits due to a functional overlay, does the appeal board err in refusing to consider the issues raised in plaintiff’s responsive brief?
Plaintiff was hired by defendant in April, 1955. On June 24, 1963, she injured her right arm and shoulder as a result of repetitive overhead reaching as part of her job. Treated at the company first aid station, she eventually went on sick leave from July 11, 1963, to September 5, 1963. Her condition improved when she was given a left-handed job, and from September, 1963, to January or February, 1970, she continued working but with frequent visits to the medical department and sick leave because of right shoulder pain. In March, 1977, she returned to work from sick leave and was placed on a job requiring her to visually inspect pick-up truck boxes. She remained on this job until April 4, 1977, when she again went on sick leave. Defendant refused to pay sick leave benefits and on June 16, 1977, plaintiff filed a petition for a hearing with the Bureau of Workers’ Disability Compensation (bureau).
A hearing was held in April, 1979, and, in a decision issued May 10, 1979, the hearing referee found that plaintiff had sustained numerous work-related personal injuries and had "a substantial physical disability”. He also found that her last job did not aggravate her condition, which he held she could perform within medical restrictions. Under these conditions he entered an award of $138 a week from April 4, 1977, to April 31, 1977, and from November 2, 1977, to April 29, 1979, the date of the decision. He denied continuing benefits for plaintiff’s claim of disability due to an alleged functional overlay, i.e., a psychological disability. The amount of the weekly award was computed on the basis that plaintiff had two minor dependents.
Defendant appealed by claim for review filed on May 18, 1979. Defendant claimed general review, contending generally that the referee’s decision was contrary to the facts, the law, and the great weight of the evidence. Its brief on appeal, filed June 23, 1980, challenged the award of compensation benefits for the closed periods and it challenged the finding of dependency. Plaintiff did not file a cross-appeal, but in her brief filed July 6, 1981, she argued, inter alia, that the award of compensation benefits should have been open and continuous and that she should have been awarded disability benefits for functional overlay.
By opinion filed October 22, 1981, the appeal board refused to consider the issues argued by plaintiff because she had not filed a cross-appeal. The appeal board said:
"* * * In her brief, plaintiff argues that the administrative law judge was wrong in finding she did not sustain her burden of proof of emotional disability and in closing the award of compensation. However, plaintiff has no appeal before us and we will confine our deliberations to defendant’s arguments.”
The appeal board affirmed the referee’s award of compensation benefits for the two closed periods. However, it reduced the amount of the award, finding that plaintiffs sons ceased to be dependents on their 18th birthdays.
Plaintiff contends that, since the appeal board reviews the referee’s award de novo, it was required to consider the issues she raised, even though she did not file a cross-appeal. In answer, defendant contends that the appeal board, in its de novo review function, is required to view only those issues raised by timely appeal and may, but is not required to, consider issues raised in the absence of a cross-appeal.
In spite of its statutory name, the Workers’ Compensation Appeal Board is not truly an appellate tribunal in the same sense that appellate courts are. The reason for that is that the appeal board reviews the record made by the referee de novo. See, for example, Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979); Paige v Asplundh Tree Expert Co, 91 Mich App 408; 283 NW2d 758 (1978); Carter v Detroit Bd of Ed, 66 Mich App 128; 238 NW2d 419 (1975). As part of that function of de novo review, the appeal board, not the referee, makes the final, binding findings of fact, where an appeal is actually taken. Kostamo, supra. The constitution and a statute give final, binding effect to findings of fact by the appeal board, not to those of the referee. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861).
But does it necessarily follow that, because the board hears all cases de novo, it must rule on the issues raised by the record and not just those raised by the appellants? Plaintiff claims two decisions by the Supreme Court and one decision by this Court answer the above question in the affir mative. Margenovitch v Newport Mining Co, 213 Mich 272, 277-278; 181 NW 994 (1921); Fawley v Doehler-Jarvis, 342 Mich 100, 102; 68 NW2d 768 (1955); Bacic v General Motors Corp, 90 Mich App 40; 282 NW2d 1 (1979). To the contrary, these decisions do no more than hold that, upon appeal from the determination of the hearing referee, the board may rule on issues not raised by the parties.
Margenovitch states only that the board may decide issues which are not raised by the party that filed the claim for review. Fawley agrees with this determination but indicates that if the board decides to take up matters which have not been raised by the parties it should, in fairness, allow the adversely affected party an opportunity to present his views on the matters. The ruling in Bade, that a party does not have to file an appellate brief, supports neither the defendant’s nor the plaintiff’s position. Bade was based on this Court’s interpretation of a workers’ compensation administrative rule concerning the filing of briefs.
The appeal board did not decline to consider plaintiff’s claim for continuing benefits for functional overlay on the grounds that plaintiff had failed to file a "cross-appeal”, as that term is commonly understood in appellate practice. 7A Callaghan, Michigan Pleading & Practice, § 57.54. Instead, the appeal board refused because "plaintiff has no appeal before us”. Neither the Worker’s Disability Compensation Act, nor the administrative rules promulgated pursuant thereto, provide for a cross-appeal. Instead, appeal is taken by a claim for review.
"If a claim for review is ñled, the board shall promptly review the order, together with the records of the hearing. The board may hear the parties, together with such additional evidence as it in its discretion may allow them to submit and shall file its order with the records of the proceedings.” MCL 418.859; MSA 17.237(859). (Emphasis supplied.)
As noted earlier, defendant filed a claim for review. Plaintiff did not.
Under the statute the only way for a party to appeal a decision of the hearing referee to the appeal board is to file a "claim for review”. This plaintiff did not do so. Thus, plaintiff is in effect contending that, once one party who is dissatisfied with certain holdings of the hearing referee files a claim for review, the opposite party, who may be dissatisfied with other parts of the holdings of the hearing referee, need not file a claim for review and that any argument raised in the opposite party’s brief not only may but must be considered by the appeal board. As we said before, no case holds so broadly. Margenovitch, supra; Fawley, supra.
Further, strong policy reasons preclude so broad a holding. These are well set forth in detail in ToMich v Kropp Painting, 1979 WCAB 2956. In that case, plaintiff filed a claim for review and in his brief argued that the amount of the award was too. low. Defendant Kropp did not file a claim for review and in its brief raised the threshold issue that plaintiff had failed to prove that the injury was work-related. The appeal board stated that, if a claim for review by one party necessarily opens the entire case for review, the party filing the appeal is placed in a perilous position if he only desires review of one portion of the hearing referee’s decision. Furthermore, an appellee could thereby raise new issues at any time, forcing unguided review of the case. Under these circumstances, the party who has not filed a timely appeal is in a better position than the party who has acted in a timely manner. In the appeal board’s opinion, allowing an appellee to raise new issues requesting affirmative relief without filing a cross-appeal (viz.: a claim for review) has serious due process problems.
The defendant in ToMich applied to this Court for leave to appeal the decision and in an order dated June 27, 1980, the application was denied for lack of merit in the grounds presented. Thereafter, the defendant applied for leave to appeal to the Supreme Court, which was denied in an order dated April 20, 1981, 411 Mich 882 (1981), because the Supreme Court was not persuaded that the questions presented should be reviewed.
We approve of the reasoning and findings in ToMich, and further agree with the panel of this Court which in ToMich denied leave to appeal "for lack of merit”. Plaintiffs claim, if adopted, would add mandatory review functions on a system already greatly overloaded and with a large backlog. The pending workload of the appeal board would be vastly expanded. This panel declines to mandate such added responsibilities, particularly in the absence of legislative direction or a ruling by the Supreme Court. Therefore, we hold that, while the appeal board may review an issue raised by a party who has not filed a claim for review, Margenovitch, supra, Fawley, supra, it is not obligated to do so.
Affirmed. | [
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Champlin, J.
The defendant is a foreign corporation engaged in the lumbering business in this State. The plaintiffs commenced this suit in attachment, and declared against it upon the common counts in assumpsit and filed and served therewith a bill of particulars as follows :
“ Sir : Please to take notice that the following is a bill of particulars of the plaintiffs’ demand in this cause, and for the recovery of which this action is brought, to wit:
1883, May 17. — To amount of. merchandise supplied W. E. "Weller by plaintiffs, and assumed by defendants - - $100 00
To 8 mos. int. @ 7 per cent., - 4 66
$104 66
Yours truly,
Humphrey & Perkins; Plaintiffs’ Attys.
To Cady <& Hoffman, Defendants' Attys."
The defendant pleaded the general issue.
At the trial, which was had before the court without a jury, the plaintiffs’ attorneys made a statement of their cause of .action to the court as follows:
In this action, brought by the Mulcrone Bros, against the American Lumber Company, the debt claimed by plaintiffs to be due them from defendant is $100 and the interest thereon from May of last year. The Mulcrone Bros, had been supplying the American Lumber Company with goods from time to time, and had, in May of last year (1883), been ¡supplying goods to one Weller, who was a contractor for said company to the amount of $100. At that time, one of .the plaintiffs went to one Gordon, who was agent or manager for the defendant, to get their pay for these goods purchased by Weller. Not succeeding at that time in obtaining a settlement and getting their pay, sai.d party (plaintiffs) told said Gordon that they would then sue Weller and garnish the -defendant for the amount, as the defendant was owing Weller. ■Said Gordon then promised plaintiffs, if they would not sue •or garnish the said defendant, they (the American Lumber Company) would pay plaintiffs the $100 claimed. Thereupon plaintiffs accepted the proposition, and refrained from, suing, and the debt not being paid by said company they have brought suit to recover the same. The particulars of the transaction will appear as the case progresses. He then produced John Mulcrone, one of the plaintiffs, who was sworn, .and testified that he knew the defendants, and had done busi ■ ness with them at Dollarville and at St. Ignace; that they owed plaintiffs $107.50 for goods supplied to Mr. Weller, who was a contractor for defendant. Thereupon counsel for defendant made a general objection to receiving any evidence as outlined by counsel’s opening statement as incompetent, immaterial and irrelevant under the pleadings, and also, for the same reasons, moved to strike the same out, which objection and motion were overruled, and exception taken by defendant.
Witness further testified, under objection of defendant’s counsel, that he spoke to the American Lumber Company’s agent by the name of Gordon, -with whom plaintiffs had before done business as agent of defendant, about this debt; that before this interview with Gordon Mr. Weller had issued an order on the American Lumber Company, with the approval of Mr. Gordon, for this sum' of $100. Gordon would not pay this order, and witness told him that plaintiffs would garnish the defendant for the amount Weller owed plaintiffs. Gordon then told witness not to do so ; that they would pay that order of $100 if he would not sue and ganfish the company - that he, on that request, forebore to sue. That also included a suit against Weller, and thereupon plaintiffs took no steps against Weller, or to garnish defendants ; that is, in consideration of that promise of Mr. Gordon’s, he did not sue Weller-Plaintiffs then relinquished their claim against Weller, and let him out and looked to the American Lumber Company alone for their pay. This was about the 20th of May, 1883. After that Weller showed to witness a statement made out by Gordon, or given by him to Weller, showing how the account stood between the American Lumber Company and Weller; and witness testified that Gordon told him that he gave the statement to Weller. In this statement Weller is charged “ To MulcrOne Bros., $100,” which is the sum in question in this suit. On cross-examination witness testified that the following order was in the handwriting of his brother,, and was signed “ G. Weller.” It reads as follows:
“ St. Ignace, May 9, 1883.
American, Lumber Company, Dollarville — Gentlemen : Please pay Mulcrone Bros., or order, the sum of one hundred dollars ($100), the same to be paid from the amount due me for rafting the first million feet of timber which I will raft.
W. E. Weller.”
This order bears the same date as a letter offered in evidence by defendant, as follows:
“ St. Ignace, May 9, 1883.
American Lumber Company, Dollarville — Gents : We inclose you another order on Am. Lumb. Co., from W. E. Weller, of one hundred dollars. Please acknowledge receipt of same. He says he will have the million rafted to-night. Please remit the ain’t of acc’t as soon as convenient, for we had to pay the order to his men to-day.
Yours respectfully, . Mulcrone Bros.”
Witness further testified, on cross-examination, that, not hearing from this letter, plaintiffs addressed them again, May 28, 1883, as follows :.
“ St. Ignace, Michigan, May 28, 1883.
Americam, Lumber Co., Dollarville, Mich. — Gentlemen : Please let us know by return of post what you are going to do in regard to the $100 order of W. E. Weller. We are anxious to hear from you in regard to it. You will confer a favor by letting us know right away. Please answer, and oblige Yours respectfully,
Mulcrone Bros.”
Defendants paid no attention to this letter and plaintiffs brought suit.
The alleged agreement appears to have been made with an agent of defendant corporation, and it became important to the plaintiffs, in order to bind the defendant, to show that the agent had authority to enter into the agreement. The only testimony bearing upon this question, aside from that above stated, is that of John Mulcrone, given on his cross-examination, as follows: “ I know that Gordon was agent, for the reason that we received letters from him signed American Lumber Co., and he acted for them in various capacities. He had charge of their timber, of booming their lumber and timber, of paying their men and settling with their contractors. Mr. Weller had an account with us of forty dollars, and Gordon, for the American Lumber Co., paid that. Weller gave us an order on the American Lumber Company, and I first asked Gordon if he would accept the order, and he said they would. My brother wrote the order and Weller signed it, and the American Lumber Company received it as they notified us.”
The facts testified to tended to make out a case of novation. Weller was indebted to plaintiffs. Defendants were indebted to Weller. By Weller’s request defendants promised to pay the one hundred dollars, which they owed Weller, to plaintiffs instead of to Weller. Plaintiffs relinquished their claim upon Weller in consideration of defendant’s promise to them, and defendant charged the amount to Weller on its books. Such a transaction is valid and rests upon a sufficient consideration. 2 Whart. Cont. § 853.
We think the evidence shows that the agent was acting within the scope of his authority. It was a mode of paying Weller so much of the amount due upon his contract. The plaintiffs in making their case did not rely upon the order as their cause of action, but upon the agreement, and the only office the order performed was to show the assent of Weller to the agreement.
The Statute of Frauds has no application to a case like the present. Bird v. Gammon 3 Bing. N. C. 883; Dearborn v. Parks 5 Greenl. 81; Rowe v. Whittier 21 Me. 545; Pike v. Brown 7 Cush. 133; Barker v. Bucklin 2 Den. 45; Farley v. Cleveland 4 Cow. 432; Rice v. Carter 11 Ired. 298; Files v. McLeod 14 Ala. 611; Robbins v. Ayres 10 Mo. 538; Bowen v. Kurtz 37 Iowa 239. The rule has been stated to be that where a party who was not before liable, undertakes to pay a debt of a third person, and as a part of the agreement, the original debtor is discharged from his indebtedness, the agreement is not within the statute. Packer v. Benton 35 Conn. 343; Fairlie v. Denton 8 B. & C. 395; Wilson v. Coupland 5 B. & Ald. 228.
The defendant’s counsel claims that no recovery can be had under the common counts. The testimony tended to show, and, we think, established the fact, that defendant was indebted to Weller in the amount of his indebtedness to plaintiffs, which was retained by them and constituted a fund in defendant’s hands with which to pay plaintiffs, and in such case the defendant would be liable under the count for money-had and received. Moreover, the amount to be paid by defendant under the agreement was a sum certain, and it is elementary law that when a sum certain is due on a simple -contract, indebitatus assumpsit will lie to recover it. Packer v. Benton 35 Conn. 343.
The judgment of the circuit court is affirmed.
The other Justices concurred. | [
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Per Curiam.
On December 12, 1976, plaintiff was discharged from his position with the City of Detroit, Department of Transportation (DOT). Thereafter, plaintiff filed a grievance against DOT pursuant to provisions of the collective-bargaining agreement between the DOT and defendant, plaintiff’s union. Defendant represented plaintiff at the hearing. Following this hearing, plaintiff was ordered reinstated by the Mayor of the City of Detroit. The DOT placed plaintiff on one year’s probation and ordered that he not receive back pay. While on probation, plaintiff filed a grievance for back pay. Defendant dropped the grievance before a full and final resolution of the merits of the dispute. Consequently, plaintiff filed an unfair labor practice charge against defendant pursuant to MCL 423.210(3); MSA 17.455(10)(3). The Michigan Employment Relations Commission (MERC) sustained an order entered by its hearing officer dismissing this action.
This Court reversed the MERC decision in Harris v Amalgamated Transit Union, Local 26 (Docket No. 78-3262, decided January 25, 1980 [unreported]). This Court found that plaintiff’s grievance seeking back pay was meritorious since MCL 35.402; MSA 4.1222 mandates that a veteran who is reinstated following dismissal receive back pay between the. date of the dismissal and the order of reinstatement. This Court said:
"Did the union’s failure to pursue the grievance through arbitration constitute an unfair labor practice? * * * [I]t is the reasonableness of the union’s actions which must be examined in order to determine if the union breached its duty.
"There is no evidence on the record that the union went to its attorney for advice or in any way attempted to determine if the plaintiff had a valid grievance. It took the attitude that the plaintiff was lucky to get his job back and its officers were not interested in pursuing plaintiffs grievance.
"It is our opinion that the union’s efforts on behalf of the plaintiff did not amount to 'an honest effort to find out who was right and who was wrong’. The union’s failure to pursue plaintiffs grievance constituted an unfair labor practice.”
Following further proceedings, MERC adopted the order proposed by its hearing officer, denying plaintiff any damages against defendant. The hearing officer stated:
"I find that PERA [public employment relations act] does not authorize imposing a back pay remedy against a union where the damage was not due to the employer’s breach of contract but rather the employer’s abuse of discretion under the Veteran’s Preference Act, * * * and no increased damages resulted from the alleged unfair labor practice by the union.”
From this determination, plaintiff appeals as of right.
The Michigan public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., was patterned after the National Labor Relations Act (NLRA), 29 USC 151 et seq. As such, it may be presumed that the Legislature intended the courts, in construing PERA, to rely on federal precedent developed under the NLRA. Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 53; 214 NW2d 803 (1974); Regents of University of Michigan v Michigan Employment Relations Comm, 95 Mich App 482, 489; 291 NW2d 358 (1980), lv den 409 Mich 918 (1980).
The leading case on how damages should be assessed against a union which breaches its duty of fair representation is Vaca v Sipes, 386 US 171; 87 S Ct 903; 17 L Ed 2d 842 (1967). There, the United States Supreme Court held that a union is not responsible for a member’s damages attributable solely to an employer’s breach of contract even if the union did breach its duty of fair representation by refusing to process a grievance. Rather, only damages directly caused by the union’s failure to process the grievance are properly attributable to the union. 386 US 196-198. See, also, Czosek v O'Mara, 397 US 25, 29; 90 S Ct 770; 25 L Ed 2d 21 (1970).
MERC concluded that plaintiffs damages were solely a consequence of DOT’s refusal to adhere to the requirements of the veteran’s preference act. In our opinion, this finding is supported by competent, material, and substantial evidence on the record as a whole. MCL 423.216(d); MSA 17.455(16)(d).
Affirmed. No costs, a public question being involved. | [
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Per Curiam.
Petitioners appeal as of right from an October 13, 1981, order of the trial court dis missing their petition, brought pursuant to MCL 49.160; MSA 5.758, on the ground that the trial court had no jurisdiction to grant the relief requested.
On April 22, 1981, Oliver Bruce Moorer was fatally shot by Saginaw police officers during the execution of a search warrant for marijuana. The Saginaw County prosecutor filed a petition in district court on May 27, 1981, requesting an inquest concerning the shooting incident. This inquest was held July 14 through July 24, 1981.
On July 28, 1981, the Saginaw County prosecutor issued a press release indicating his decision that no criminal charges would be brought against any person or persons concerning the death of Moorer. The release further stated that his decision was based on a review of the facts and the advisory verdict of the inquest jury which found the death was caused by lawful means.
On July 30, 1981, petitioners filed a petition in the circuit court seeking the appointment of a special prosecutor to review the evidence and initiate and prosecute charges arising from the shooting incident. Petitioners specifically alleged that during the district court inquest, the prosecutor acted to defend the police involved rather than to probe for evidence of criminal violations.
The sole issue on appeal is whether the trial court erred in determining that it had no jurisdiction to appoint a special prosecutor as requested by petitioners.
The ability of a court to appoint a special prosecutor to act in lieu of a county prosecutor is governed by statute. People v Johnston, 326 Mich 213, 217; 40 NW2d 124 (1949). The statutory language in effect at all times during the proceedings below was MCL 49.160; MSA 5.758, as amended by 1978 PA 535, which took effect on December 21, 1978. This Court has not yet had an opportunity to consider an application of the revised statute to a set of facts similar to those in the instant case. Under MCL 49.160; MSA 5.758 prior to its 1978 amendment, however, our question has been considered. See People v Davis, 86 Mich App 514; 272 NW2d 707 (1978); Sayles v Genesee Circuit Judge, 82 Mich 84; 46 NW 29 (1890). It is clear that under the old statute, as interpreted by Davis and Sayles, the circuit court would not have the power to appoint a special prosecutor under the circumstances herein. Said cases interpreted the old statutory language as referring to cases arising in or pending in the courts referred to and not to cases out of such courts. By limiting appointment of a special prosecutor to cases which had already come to court, the old statute precluded appointment for the purpose of investigation or initiation of criminal prosecutions.
We must now consider the language of the statute as amended to see if its scope would encompass the proposed appointment herein. Subsections (1) and (2) of the amended statute limit the appointment of a special prosecutor to the purpose of performing the duties of the prosecuting attorney "in the respective court in any matter in which the prosecuting attorney is disqualified” and "to perform the duties of the prosecuting attorney in the probate court, the district court or any other court within the county in any matter in which the prosecuting attorney is disqualified”. (Emphasis supplied.) MCL 49.160, subds (1) and (2); MSA 5.758, subds (1) and (2), as amended by 1978 PA 535. We agree with the trial court that the above subsections do not allow the circuit court to appoint a special prosecutor to perform the duties of the prosecuting attorney in any matters outside of the aforementioned courts, including the investigation of complaints of a crime or for the purpose of initiating criminal charges.
Decisions regarding the initiation of criminal charges are discretionary executive acts. In deference to principles of separation of powers, judicial interference with the exercise of this discretion is severely limited. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972); People v Thomas, 118 Mich App 667; 325 NW2d 536 (1982). If the amended statute were interpreted as allowing the appointment of a special prosecutor to initiate criminal charges, even for legitimate reasons such as confict of interest, the court’s appointment of a special prosecutor would constitute a judicial second-guessing of the prosecutor’s actions. Because such an action by the courts is suspect under constitutional principles, we hesitate to make such an interpretation of this statute, since the statute does not explicitly provide for that kind of judicial power. Once a case is brought to court, the substitution of a special prosecutor does not constitute such an obvious interference with prosecutorial discretion.
Additionally, plaintiffs argue that subsection (3) of the statute allows the circuit court to appoint a special prosecutor for matters outside of the aforementioned courts. This argument is without merit, since subsection (3) is clearly controlled by subsections (1) and (2), which we have already held limit the appointment of the special prosecutor to those instances where the duties are to be performed in court.
Finally, since the circuit court judge has no jurisdiction to make such appointment other than by statute, clearly jurisdiction cannot be based upon general equitable jurisdiction, or upon GCR 1963, 521, which governs declaratory judgments.
The recommended remedy herein is for petitioners to request the Attorney General to review their complaint and rule on same pursuant to the authority granted under MCL 14.28; MSA 3.181 and MCL 14.30; MSA 3.183.
Affirmed. | [
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] |
Stone, J.
This is an action of assumpsit brought by the city of Detroit against the defendant to recover certain personal taxes alleged to have been levied in the years 1912-1916, against defendant on a certain building upon land belonging to the University of Michigan, and leased to the defendant. There was a directed verdict followed by a judgment in favor of the defendant, and the plaintiff has brought the case here for review upon writ of error. The facts in the case were stipulated in writing by the attorneys for the respective parties, and the stipulation was filed and read in evidence at the trial in the court below, without objection thereto by either party, which stipulation was as follows, viz.:
To have and to hold said premises with all the rights, privileges, easements, hereditaments and appurtenances thereto belonging unto the said lessee for and during the term of forty (40) years from and after the first day of January, in the year of our Lord one thousand and nine hundred and twelve, on the terms and conditions hereinafter specified, unless said term shall be sooner terminated as hereinafter provided.
Said lessor does covenant, bargain and agree to and with said lessee that at the time of the ensealing and delivery of these presents It is well seized of the above leased premises in fee simple, and that they are free from all incumbrances whatsoever, and that it will warrant and defend the same against all lawful claims whatsoever accruing against said property prior to January 1st, 1912, and also against all claims whatsoever accruing thereafter, by, through, or under the lessor.
RENTAL.
II. In consideration whereof, said lessee hereby covenants and agrees to pay the lessor as rental for said demised 'premises,; at the office of the treasurer of the University of Michigan, at Ann Arbor, Michigan, the sum of twenty-five hundred dollars ($2,500) per annum for the first ten (10) years of said term, payable in equal monthly installments of two hundred and eight and 34/100ths dollars ($208.34) each, in advance, on the first day of each month during said ten years.
“This suit was brought by the city of Detroit to collect against the defendant certain taxes levied under the following circumstances:
“Prior to November 15, 1911, the University of Michigan became the owner through gift of the Honorable Levi L. Barbour of property on the west side! of Woodward avenue between Canfield and Willis avenues in the city of Detroit, described as lot ‘D’ of the James A. Jones re-subdivision of lots one (1), and two (2) and three (3) of the Ira Davis subdivision of park lot sixty (60), according to the plat thereof as recorded in liber 7 of plats, page 49; and also lot twelve (12) of the subdivision of park lots sixty-one (61) and sixty-two' (62) according to the plat thereof as recorded in liber 1 of plats, page 128, Wayne county registry; this property was located in the second ward in the city of Detroit, and' was vacant, old dwellings which had occupied it having been tom down. With the property in this condition and producing no revenue for the University a lease was entered into between the University of Michigan as lessor and Edwin S. George as lessee, dated November 15, 1911, a copy of which is attached hereto. In determining the amount of rent stipulated therein, both parties took into account the fact that the lessee is required by the terms of said lease to erect a building to cost not less than fifty thousand dollars ($50,000), and that all buildings erected on the premises by the terms of the lease became the property of the University of Michigan; that the clause in the lease obligating lessee to pay all taxes, etc., was placed therein at the instance of the representative of the University of Michigan.
A rental of thirty-nine hundred dollars ($3,900) per annum for the second ten (10) years of said term, payable in equal monthly installments of three hundred and twenty-five dollars ($325) each, in advance, on the first day of each month during the said second ten (10) years.
A rental of five thousand' dollars ($5,000) per annum for the third ten (10) years of said term, payable in equal monthly installments of four hundred and sixteen and 67/100ths dollars ($416.67) each, in advance, on the first day of each month during said third! ten (10) years.
A rental of six thousand dollars ($6,000) per annum for the last ten (10) years of said term, payable in equal monthly installments of five hundred dollars ($500) each, in advance, on the first day of each month during said last ten (10) years.
All of which rents shall be payable in lawful gold coin of the United States of America of the present standard of weight and fineness, provided that acceptance by said lessor at anytime of any portion of the- whole of said rent 'in any other money than gold coin shall amount to a payment of the rental, to the amount so paid, but shall not be a waiver or release of the right of said, lessor afterwards to insist upon and have all future payments of such rents made in such gold coin.
“All the rentals which the University of Michigan has received from this property have been devoted to the expenses and uses of the University of Michigan.
“During the months of February, March, April, May, June and July, 1912, at a cost of nineteen thousand two hundred and four and 26/100 dollars ($19,204.26), Mr. George erected stores upon a portion of said premises, the stores being of steel, concrete and tile construction, and so constructed that they could be amplified, extended and increased as soon as conditions warranted. With the consent of the University, Edwin S. George has sold this lease, still, however, remaining personally liable on all obligations thereunder. Certain of the assignees secured from the University, upon delivering a bond for $150,000 conditioned that the buildings will be replaced, consent of the University to replace such buildings with a building of different type to be used for different purposes, namely, a theatre and café costing upwards of one hundred thousand dollars ($100,000); that the original buildings have been removed from the land and the new theatre building is now in process of construction. These buildings have at all times been insured for the benefit of the University.
It is agreed that all rent that shall not be paid when due shall bear interest at the rate of six (6%) per cent, per annum from the date when the same is payable until the same shall be paid by said lessee.
ERECTION OF NEW BUILDING AND INSURANCE.
III. The lessee further covenants and agrees that he will construct upon said premises at some time during the term, of this lease a building, or buildings, whose cost shall be at least the sum of fifty thousand dollars ($50,000); such building or buildings may be erected at different times and in parcels as lessee may wish, which, however, shall be so designed and constructed that ultimately they will constitute one building; and said lessee agrees to furnish said lessor written evidence, satisfactory to it, that said building has cost at least that sum. And said lessee further covenants and agrees that he will not use or permit said premises, or any part thereof to be used for any unlawful purpose, or for a saloon, or for any purpose which will constitute a nuisance.
“During the spring of 1912, the board of assessors of the city of Detroit indicated an intention to attempt to levy a tax against this property. They were promptly advised by Mr. George and his representatives that both the land and the buildings were the property of the University of Michigan, and were not subject to taxation. Notwithstanding that such notice was given to the said board of assessors, the said board caused to be entered in its field book for the second ward assessment reading as follows:
The said lessee further covenants and agrees to keep all buildings erected upon said premises during the term of this lease, which can be damaged by fire, insured against loss by fire in companies satisfactory to said lessor, and in an amount equal at least to fifty (50%) per cent, of their value.
In the event that the building or buildings which may be erected upon said premises are destroyed, or partially destroyed by fire, the lessee covenants and agrees to re-construct or restore such building or buildings within a reasonable time, so that said building or buildings shall be in as good condition and of as good construction as they were before such fire; and as security for the performance of this covenant it is agreed that all fire insurance shall be' payable to said lessor which may be used by said lessee in the reconstruction or restoration of said building or buildings; Provided: That in case said lessee shall not so reconstruct or restore said building or buildings within a reasonable time after such fire, then said lessor may reconstruct or restore said building or buildings and use all moneys received on fire insurance for the purpose of defraying the cost of such reconstruction or restoration, and the balance, if any, shall go to said lessee.
“ ‘Lot “D”-James A. Jones Sub’n.-$5,000.00.’
“That thereafter the said defendant duly and in accordance with the statute in such case made and. provided and in accordance with the charter of the city of Detroit, presented to the common council and to the board of review, his petition for cancellation of said assessment, a copy whereof is hereto attached; that said defendant and his counsel appeared before the said board of review and presented to the said board the said lease and also presented the law governing the situation as contended for by them; and thereupon the taxing officials of the city of Detroit caused the entry in the said field book to be changed by striking out the figures ‘$5,000’ and) adding to the said entry in such manner that it read as follows:
The lessee further covenants and agrees that all boilers, elevators, or other machinery in the building or buildings which may be erected on said premises shall be insured in the name of said lessee against accident in some responsible casualty company or companies, to be approved by said lessor, and In case of damage or destruction of said building or buildings by casualty or accident to said boilers, elevators on machinery, or in case of damage by casualty to said boilers, elevators and machinery, all provisions, conditions, covenants and agreements of every nature herein contained, relating to damage or destruction by fire, shall apply fully in like manner to any damage or destruction by casualty or accident; and said lessee further covenants and agrees that he will save said lessor harmless from all damage on account of injuries to person, life or property in, on or about said building or buildings by reason of such damage or destruction by casualty or accident to such boilers, elevators and machinery, or on account of fire, or any other cause beyond the control of said lessor.
And said lessee further covenants and agrees that in case the lessor shall, without any neglect or fault on its part, be made a party to any litigation commenced by or against the said lessee, then the lessee shall pay all reasonable costs and attorney fees incurred or imposed upon the lessor hereto.
“ ‘Lot “D”-James A. Jones Subdivision.
"Exempt ......................$5,000.00
[In the above line of the original there was a ruled line drawn through the words and figures.]
“ ‘Owners Names: University of Michigan — Edwin S. George.
“ ‘$5,000.00 building assessed to Edw. S. George, 1st Ward/
“That thereafter the said board of review denied the petition of said defendant and directed an.assessment of a personal tax against Edwin S. George, the defendant herein, to be placed upon the assessment rolls of the first ward in the city of Detroit (in which ward said George resided) and levied taxes against the said defendant personally for the years 1912, 1913, 1914, 1915 and 1916; that each of said taxes was based by the assessing officials upon the claim that said buildings could be assessed against said George as personal property.
“That the said defendant has at ail times asserted that said taxes are illegal and invalid, and has refused to recognize the same as a tax against him, or against said buildings or property, and has refused to pay the same, or any part thereof for any year.
CARE OF PREMISES, REPAIRS, ETC.
IV. Said lessee further covenants and agrees that he will keep all buildings erected on said premises in good repair and will keep the sidewalks on and adjoining said premises in good repair and free from snow, ice and other obstructions; and that all health and police regulations shall in all respects and at all times be fully complied with by the said lessee, and the said lessor kept harmless and indemnified at all times against any loss, damage, cost or expense by reason of the failure so to do in any respect, or by reason of any accident, loss or damage resulting to persons or property by reason of any use which may be made of .said premises, or by reason of any act or thing done upon said premises by or through the act or negligence of said lessee or -his assigns, or any of his agents or representatives.
“That if said taxes are a proper charge against the said buildings, said property, or said George, then the amounts thereof would be as follows, the same being computed to September 1, 1920:
Year. Tax. Interest Added. Total.
1912 $99.66 $86.9.4 .$186.60
1913 202.92 155.56 358.48
1914 196.97 130.29 327.26
1915 236.41 131.06 367.47
1916 185.20 83.04 268.24
Total - $1,508.05”
The above stipulation of facts was duly signed by attorneys for the respective parties.
Later there was filed in this court the following additional stipulation of counsel:
“In addition to the facts as heretofore stipulated between the parties, it is further hereby stipulated that from the years 1912 to 1916 the defendant, Edwin S. George, was not a resident of the city of Detroit, but was a resident of Bloomfield township, Oakland county, and that he maintained an office for the transaction of his business in the first ward of the city of Detroit.”
TAXES AND PUBLIC CHARGES.
V. Said lessee further agrees to pay, within six months after they are payable, during the entire term of this lease, all water rates, and all lawful taxes and assessments, general and special, extraordinary as well as ordinary, and all public charges of every kind and description that may be levied or assessed or become due upon or against said premises and upon any building or buildings which may be erected thereon, as hereinbefore provided, or upon any building, addition or improvement of any kind which may at any time during said term be placed thereon, and also all such taxes, assessments or public charges as shall or may become due or be levied or assessed upon the leasehold interest in said property vested in said lessee or in said lessor by this indenture; and the said lessee hereby agrees that he will procure at the time of payment and forthwith deliver to the said lessor, either original or duplicate receipts of the proper officers for the payment of all such taxes, assessments or charges.
In case of the failure, neglect or refusal of the lessee' to pay any such taxes or assessments or other charges within six months after the same shall become due and payable, or in the case of the sale of said property, or any part thereof for the non-payment of any of such, charges, taxes or assessments, then and in that case, this lease shall, at the option of said lessor, cease and determine; or, in case of such failure, neglect or refusal, said lessor may, at its option, elect to pay such unpaid charges, taxes or assessments or to buy any tax titles outstanding upon said premises, or any part thereof, by reason of the default of said lessee in the payment thereof, and may treat the sum or sums so paid as so much additional rent due forthwith and have the same remedy or remedies, for the nonpayment thereof as are given it by law or by the terms of this lease for the non-payment of the rents hereinbefore reserved.
In our view of the case it will not be necessary to consider many of the questions raised by the assignments of error and discussed by counsel. We are impressed with the claim of the defendant “that upon the pleading's and proofs as stipulated filed herein the plaintiff is not entitled to recover.” We are of the opinion that upon this record it must be said that the tax assessed was a tax on the building, as personal property, the owners being the University of Michigan, and Edwin S. George; and it cannot properly be said to be a tax upon a leasehold interest.
In its charge directing a verdict for the defendant the trial court said:
“It is my opinion that the ownership of the buildings is the main question in this case. It has been held that property held by the Regents of the University of Michigan in their corporate capacity is the public property of the State, held by the corporation in trust for the purposes to which it was devoted, and is exempt from taxation. Auditor General v. Regents, 83 Mich. 467 (10 L. R. A. 376).
ASSIGNMENT.
VI. The said lessee further covenants and agrees not to sell or assign this lease, or any interest therein, without the written assent of the lessor, and such assent shall not release the lessee from any of his obligations hereunder.
The said lessee further covenants and agrees that said written assent by the lessor shall operate as a license to assign only to the party or parties named in the said written assent and that said written assent shall in no way impair the obligations of the above covenant, which shall remain in full force and operation.
“It is expressly stipulated in the lease that the buildings shall belong to the University, and I fail to see any ownership in them in the defendant George. The only- interest that he can possibly have is a leasehold interest. The buildings, both by the express terms of the lease and under the law, are part of the freehold and the property of the University. As such they are exempt from taxation, and it becomes my duty to direct a verdict in favor of the defendant.”
We think that this charge was justified by the record.
It is very plain from the stipulation of facts that the board of assessors first attempted to assess the land itself for $5,000. The board of review abandoned this step by reason of section 4001, 1 Comp. Laws 1915, and the decision above referred to. Said board then caused its field book to be changed to read, as shown in the record, “$5,000 building assessed to Edw. S. George, 1st ward.”
It is not intended to hereby limit or abridge the right of said lessee to sub-let said premises, or any part thereof, which privilege he has, subject to the limitations and conditions herein contained.
It is further agreed that the joint signature of the lessor and lessee shall be required in all cases to an instrument in writing, whereby any person other than said lessee may directly or indirectly acquire the right to use or occupy any portion of any street or alley upon which said property abuts.
FORFEITURE.
VII. This lease is upon express condition that said lessee shall punctually perform all of his covenants and agreements herein set forth; that, time is of the essence of this contract; that if said rents, or any past thereof shall be in arrears and unpaid for a period of thirty (30) days after they are payable, as above provided, or, if said taxes, and insurance premiums, or any part thereof, shall be in arrears and unpaid for a period of six (6) months after the same are payable, or if default be made in any of the other covenants of this lease, and such default continue for sixty (60) days after notice is given by the lessor to the lessee, then it shall and may be lawful for the lessor to re-enter into and repossess the said premises, and the said lessee and each and every other occupant to remove and put out.
The assessment roll is not before us, but it is fair to infer that it followed the field book. Then follows the following significant language of the stipulation, which we repeat:
“That thereafter the said board of review denied the petition of said defendant and directed an assessment of a personal tax against Edwin S. George, the defendant herein, to be placed upon the assessment rolls of the first ward in the city of Detroit (in which ward said George resided) and levied taxes against the said defendant personally for the years 1912, 1918, 1914, 1915 and 1916; that each of said taxes was based by the assessing officials upon the claim that said buildings could be assessed against said George as personal property.”
Said lessor may bring suit for and collect all sums which may have accrued in its favor under this lease, and all damages it may have sustained on account of the breach of this lease by said lessee. But said lessee may, at any time before the expiration of said sixty (60) days, pay all moneys due and make all repairs and do all things mentioned in and required to be done by the notice given by the lessor to the lessee, Provided, That in case any rent shall become due under this lease, demand for the payment of such rent, or for the possession of such premises is hereby waived, according to the provisions of section 11164 of the Compiled Laws of 1897.
It is further covenanted and agreed that all buildings, fixtures and improvements situate on said premises shall belong to said lessor and that said lessee hereby expressly covenants and agrees that upon the termination of this lease for any cause aforesaid, be will at once surrender and deliver up the above described premises, together with all the improvements thereon, to the lessor.
It will be noted that neither of said boards attempted to assess a leasehold right or interest. The defendant therefore had no opportunity to meet the question or present the claim as to whether his leasehold interest was lawfully taxable, and, if so, what its value was. It is clear that if the question of á leasehold interest had been presented it would have been competent for the defendant to have presented facts as to the value of the leasehold interest. The valuation, however, was placed upon the building as appears from the field book entry.
It is the claim of counsel for the city that there was here really an assessment of the leasehold interest of the defendant;, and he invokes the aid of the curative statute, section 4098, 1 Comp. Laws 1915, which provides that:
“No tax assessed upon any property * * * shall be held invalid by any court of this State on ac count of any irregularity in any assessment, * * * or on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance in any proceeding that does not prejudice the property rights of the person whose property is taxed.” * * *
VIII. All notices required by this lease shall be in writing, and shall specify the breach of covenants and in what particular default is claimed to have been made, and may be served either personally or by mailing such notice to- the party to be served at his post-office address in Detroit, Michigan, or at such address as shall have been furnished by the lessee to the lessor id. writing. If no service can be made upon said lessee in the manner aforesaid, such notice may be served by posting same in some conspicuous place upon said premises.
It is further agreed that no waiver of a breach In any of the covenants of this lease shall be construed to be a waiver of any succeeding breach of the same or any other covenant.
POSSESSION.
IX. Said lessor covenants and agrees that the said lessee on performing all of the covenants and agreements aforesaid on his part, shall and may at all times during said term, peacefully, quietly have, hold and enjoy the said demised premises for and during the term hereby granted.
In answer to this claim, it may be said that neither of said boards made any attempt to tax any leasehold, and the record is silent upon that subject. It may be said to be an afterthought of counsel.
It should be further said that this matter goes to the jurisdiction of the board's; and it has been invariably held that curative statutes can never cure want of jurisdiction. This court has repeatedly held that the curative provisions of the statute quoted do not relieve against defects which go to the jurisdiction «of the body authorizing the levy. The question here is one of power to act. That the property rights of the defendant are here prejudiced, cannot, we think, be questioned. The following authorities bear upon the subject of curative statutes, and especially upon the statute quoted: Hart v. Henderson, 17 Mich. 222; Township of Caledonia v. Rose, 94 Mich. 216; Auditor General v. Keweenaw Ass’n, 107 Mich. 405; Hamilton & Merryman Co. v. Township of L'Anse, 107 Mich. 419; Auditor General v. Railway Co., 116 Mich. 122; Auditor General v. Sparrow, 116 Mich. 574, 591; Auditor General v. Stone, 190 Mich. 93, 98; Rapid Railway Co. v. Schroeder, 190 Mich. 684, 689.
TO EXTEND TO HEIRS.
X. It Is further agreed that all of the covenants, agreements, conditions and undertakings herein contained shall extend to and he binding upon the representatives, heirs, executors, administrators, successors and assigns of the respective parties hereto, as if they were in all cases named, and these covenants shall be construed as covenants running with the land.
In witness whereof, the said lessor has caused its corporate seal to be hereto affixed, and these presents to be subscribed by its president and secretary; and the said lessee has hereunto set his hand and seal the day and year first above written.
Signed, sealed and delivered in presence of:
Beulah B. Davis, Georgie E. Jackson, Harold H. Emmons, A. G. Finley.
The Regents of the University of Michigan.
Harry B. Hutchins, President.
Shirley W. Smith, Secretary.
Edw. S. George (L. S.)
(The foregoing instrument was duly signed and acknowledged on November 15, 1911.)
In all of the cases cited by plaintiff’s counsel upon this subject the right property was assessed. Here the defendant was assessed as the owner of this building.
City of Menominee v. Lumber Co., 119 Mich. 201. In that case there was a wrong name, but the right property was assessed of which the defendant had notice.
It must be said that the assessment here was upon the basis of the defendant’s ownership of the build ing. It was exempt from taxation. The idea of an assessment, of a leasehold interest was never contemplated by either board. This, in our opinion, requires an affirmance of the judgment. We decline to pass upon the questions of the taxability of the leasehold interest of defendant, and if taxable where, because those questions are not before us. When steps are taken to assess such interest, and the question is .properly before us, we will consider it. So far the defendant has had no opportunity to meet the question before the assessing officers, and the question is a moot one.
In Johnson v. Burghorn, 212 Mich. 19, 27, 31, we declined to pass upon the questions of shooting and fishing as not being involved in the case, and as presenting a moot question. For the same reason we .decline to pass upon the question of leasehold interest.
The lease in question appears in the margin.
The judgment of the circuit court is affirmed.
Steere, C. J., and Moore, Fellows, Clark, Bird, and Sharpe, JJ., concurred.
The late Justice Brooke took no part in this decision. | [
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Steere, C. J.
On June 2, 1916, the then recently incorporated Michigan Employers Casualty Company opened-books for sale of its capital stock and entered into a written contract with plaintiff under which it appointed him “fiscal agent for sale of the first two thousand shares.” The contract provided that plaintiff should sell defendant’s stock, “either in person or by his duly authorized agents” for a commission of 15% of the selling price, which was to be $75 per share. His 15% commission was made payable when at least 20% of the purchase price for the stock he sold had been paid in. The commission was to cover all costs of sale, including stationery, advertising, postage, etc. In case any subscriber for stock failed to pay the balance due on his. subscription plaintiff was to rd-sell the unpaid-for shares, and any commission which had been paid him thereon should be deducted from his commissions on re-sales.
The last paragraph of the contract provides:
“It is further understood that the operations of said second party as fiscal agent for the said first party shall at all times be subject to the control and supervision of said first party.”
Plaintiff was at that time in the brokerage business in Detroit, but had formerly lived and was well acquainted in Lansing. Has father was probate judge of Ingham county and on organization of defendant was chosen its vice-president. Robert K. Orr, then an employee in the office of the State accident fund, was made secretary and treasurer.
When plaintiff was selected fiscal agent to sell the specified amount of stock he made an oral agreement with Orr to and did appoint him his agent at Lansing, with the privilege of appointing and obtaining licenses for sub-agents to sell stock. He also procured for Orr an agent’s sales license “to live up to the points of the law,” as plaintiff explained. Shortly thereafter Orr left the State service and they secured an office, opened books for the business and a joint bank account in their names for the agency, as plaintiff stated “to take care of the minor overhead expenses and a place to deposit and turn over the Michigan Casualty Company account proper.” As plaintiff lived in Detroit where he had other business and Orr lived in Lansing, it was arranged the latter should have charge of the details and office management because, plaintiff said, as he was situated, there “had to be some arrangement of that kind” and “that program was carried on throughout.”
After these preliminaries were settled plaintiff entered upon a campaign of promotion, his father and Orr co-operating in an endeavor to get prominent men interested and to sell stock. Plaintiff was in the office when in Lansing from time to time as occasion required and he desired. On such occasions he and Orr consulted together and he kept such track of the business as he cared to. Orr advised with him about employing certain men as sub-agents and other details of the business. It does not appear that there was any attempt to conceal the details from or mislead him ás to what Orr was doing in the management of the selling agency. Orr procured, hired and paid all the sub-agents employed, handled the accounts, indorsed cheeks, paid the bills and kept a record of the stock sold. Plaintiff himself received checks on that account drawn by Orr which were applied on commissions for sales of stock made by him in person. He testified that he directly sold or aided in selling 415 shares of stock, the last sale by him being in the fall of 1916. The requisite amount of stock involved here was finally all sold or subscribed for by January 4, 1917, after which defendant was entitled to engage in the insurance business and issue policies. It appears to be undisputed that the defendant company has paid to or through the selling agency the full 15% commission on all stock sold, but differences arose and plaintiff contended he had not received the portion of net proceeds from commissions he was entitled to.
On May 22, 1919, he wrote defendant a letter from his office in Detroit making “immediate demand” for payment of $1,157.50 yet due him as commission for sale of defendant’s capital stock, inclosing with the letter an itemized statement of stock actually sold by him against which a full 15% commission was charged and also stock sold in conjunction with others, claiming in some cases one-half and in others two-thirds of such commission, the items thus charged totaling the amount demanded. On August! 6, 1919, he made a written demand on defendant for $19,750 balance due him on sale of the first 2,000 shares of defendant’s capital stock, stating the total amount earned on a 15% commission to be $22,500 against which he gave a credit for stock and money received, reducing the same to the amount claimed. He thereafter commenced this action, declaring first by special count for $19,750 due him under the contract, and also on the common counts in assumpsit.
Defendant pleaded the general issue with special notices, in substance that the claimed indebtedness had been fully paid, the contract declared on had been mutually abandoned, and that it had been modified by mutual conduct and consent of the parties. On the trial plaintiff only urged his claim on the basis of 15% commission on stock which he personally sold or helped sell, at first contending it amounted to what he claimed in his letter of May 22, 1919, but reduced the same during his examination to $1,007.50 for which amount he asked judgment. Defendant timely moved for and requested a directed verdict, and after argument the court tentatively took the verdict of the jury on whether plaintiff had modified or rescinded Orr’s agency as to commissions for sales made by plaintiff personally. The jury rendered a verdict for the amount claimed ($1,007.50) in plaintiff’s favor, which was set aside by the court on defendant’s motion and judgment rendered for defendant non obstante.
Until after the trial was entered upon what plaintiff actually did claim was rather problematical. He had made two different written demands of defendant, one on May 22,1919, for $1,157.50 as commissions on sales made by him personally, in whole or in part, and one on August 6,1919, of $19,750, balance claimed due him as fiscal agent under his contract of June 2, 1916, for “fifteen per cent, on one hundred and fifty thousand dollars” of defendant’s capital stock which he had sold. His declaration contains a special count on the contract and also the common counts in assumpsit. Early in the trial he filed a bill of particulars claiming $19,750 as the balance of-his 15% commission “on sale of 2,000 shares of the capital stock of the Michigan Employers Casualty stock at $75 per share,” less credits allowed for. $200 “advanced expenses” and $2,550 for “forty shares at $75 per share after deduction of $450 commission on same.” Abandoning his larger claim under the special count plaintiff reverted during the trial to the theory of his written demand of May 22, 1919, for commission upon stock personally sold by him alone or in conjunction with others.
Having abandoned his claim under the contract it became under his contention only incidental, and his insisted claim is in fact and effect based on his dealings with Orr as a representative, or agent, of the defendant company, to whom as his agent he con tended it had no authority to pay money for commissions on sales made by him personally. In taking the verdict of the jury on that proposition the court said in part:
“So far as the company were concerned, it is very plain that the money was deposited in this fund, either through the checks of Mr. Gardner or checks on Robert K. Orr, with the understanding that Robert K. Orr could receive the funds as well as Earle A. Gardner. And I say, gentlemen, unless you find from the evidence and by a preponderance thereof, that at some time after the starting of this fund, Mr. Gardner rescinded that arrangement, either by his conduct or by word or by writing — and there is no evidence of any writing — notified the company of that decision, then your verdict must be no cause of action.”
On subsequently reviewing the record and hearing arguments of counsel the trial court concluded that the claim of plaintiff submitted to the jury was without evidential support and fictitious, for which reason the verdict was set aside and judgment rendered for defendant as before stated.
With that conclusion we are constrained to agree. The question involved is purely one of agency. We find no substantial evidence in the record of rescission by plaintiff of the arrangement made in the beginning when he appointed Orr his agent and left with him the management of the agency at Lansing, nor of any notice by word or conduct to the defendant company of his intention to rescind during the sale campaign. When asked, “And who had charge in fact of the office management and details” he replied, “I left that to Mr. Orr because I knew he was going to be here with the home office. I let him do that and such program was carried on throughout.”
It is true, as plaintiff contends, that the double agency of Orr presents a disturbing feature in the transaction, but such engagements are permissible and legal when, known to and acquiesced in by both parties, as was the case here. At the time Orr was appointed agent by plaintiff and left the State employ he received no salary from defendant for his services, as it could not do business in the line it was organized for until the required amount of its capital stock had been sold. He therefore in the meantime directed his activities chiefly to the promotion and sales agency under plaintiff and, as he testified, was dependent upon his earnings there for a living during that period. He was in the beginning put and left by plaintiff in charge of the books, office and management of the sales agency. He performed those duties openly and with plaintiff’s expressed or implied consent; he organized the agency, procured equipment for the office, hired and paid sales agents, received, banked and disbursed the funds belonging to the agency. As late as January 2, 1917, plaintiff received and cashed a check for $250 drawn by Orr on that account. He testified that he personally hired none of the salesmen, but names at least five whom Orr employed, and of these he said, “Mr. Orr talked' it over with me, and several times at the time — he did not know whether he was going to pay them all the same or not.”
In the final analysis plaintiff’s direct grievance is that Orr, acting for defendant, has refused or neglected to respond to his demand for an account of the funds defendant once paid Orr as plaintiff’s agent, and he now seeks to hold defendant responsible for Orr’s disposition of those funds. We think it conclusively shown that this action will not lie against defendant. It may be admitted upon this record Orr’s conduct does not indicate he fully appreciated the delicacy of his position under the double agency, and his strict accountability to plaintiff as his agent for all fees for commissions which came into his hands as such, but any delinquency in that particular cannot be imputed to defendant.
We agree with the conclusion of the trial court that it is clearly shown beyond dispute defendant has paid all commissions in full to plaintiff or his authorized agent and the claim he now urges is in effect based on his dealings with his agent, Orr. Except a payment made plaintiff in stock, defendant paid in checks payable to plaintiff or Orr, which were deposited in bank to credit of the promotion account and totaled $20,871. What became of that fund is a matter between plaintiff and Orr. We think the well settled rules of agency applicable to the facts shown here are in principle those applied by this court in Plankinton Packing Co. v. Berry, 199 Mich. 212.
The judgment will stand affirmed.
Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. The late Justice Brooke did not sit. | [
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Wiest, J.
This is a contest over the will of Matheus Ver Vaecke, the proponent being Louise Billiet, a distant relative of the deceased wife of the testator and housekeeper and helper in his financial affairs for some years, the contestants being his children and grandchildren. The contest was on the grounds, of mental incompetency and undue influence. The will was allowed in the probate court and contestants appealed, and upon the trial in the circuit before a jury there was a finding against the will. Proponent brings the case here by writ of error, claiming the verdict was against the weight of the evidence, and assigns error upon- the refusal of the court to grant a new trial upon that ground and alleges other errors.
The testator came to Detroit from Belgium in 1892, accompanied by his wife and eight children, and remained in Detroit for about two years, then with his wife and some of his children moved to the country and carried on truck farming until about 1907, when he returned to Detroit where his wife died in 1909. His wife was the active manager of their business affairs on account of his being illiterate and not familiar with the English language. Investments were made in Detroit real estate.
Following the death of his wife testator gave his son Henry a power of attorney under which Henry collected rents, paid the taxes and looked after repairs, turning what was left of the money over to testator. This continued for about four years, when testator made it known to Henry that he wanted to handle his own affair^ and asked that the power of attorney be terminated. In answer to such request Henry told his father he would consider the matter, gave back some papers relating to the business and filed a petition in the Wayne probate court asking that a guardian be appointed for his father. Upon this application Henry was appointed guardian, the father not appearing at the hearing. About three weeks later the father petitioned the probate court to re-open the matter and a rehearing was had attended by attorneys representing the guardian and testator and an order made relieving testator from guardianship.
In 1912 Louise Billiet came to Detroit from Belgium, and was then about 39 years of age, and she took up housework and other work. Not being satisfied with conditions in living with his children, the testator went to live at the home of a friend in June, 1912, and in the fall of that year made a trip to Belgium. Upon his return from Europe he lived, with his son Camille for a few months and then went to live in one of his own houses. Having renewed old acquaintance with Louise Billiet, he had her come to his house, where she did the housework and helped him repair his houses and aided him in the management of his property up to the time of his death.
Relations between testator and his children were not at all intimate after he commenced to live away from them. June 20, 1917, testator, accompanied by Louise Billiet, visited the law office of Clayton A. Powell, in Detroit, where the will in question was prepared and executed; Louise Billiet not being in the room with testator while he was directing the attorney with reference to the provisions of the will, and in preparing the will the attorney followed the direo tions of deceased. In the will testator devised and bequeathed to his housekeeper, Louise Billiet, all his household furniture and the greater part of his real estate. He also devised one-eighth part of the remainder of his estate to the children of a deceased daughter, and the residue to his seven children, and provided the expense of his last illness and funeral expenses be paid from the property devised to Louise Billiet.
Twenty errors are assigned, but it will be necessary to consider only the refusal of the court to grant a new trial on the ground that the verdict was against the weight of the evidence. The record consists- of 360 pages and is too long to be reviewed at length in this opinion, and we can do no more than briefly call attention to salient points.
The witnesses called by contestants were permitted, in some instances, over objection, to express opinions relative to testator’s mental incompetency without stating sufficient facts to qualify them to do so and some were permitted to express opinions upon the question of undue influence in their judgment exercised by proponent. The rule is clear that a witness cannot give an opinion that the testator was mentally incompetent to make a will, 'until the facts within' his knowledge and upon which he bases his opinion are given in evidence and prove to be of such a character that the court can say the witness is justified in expressing- an opinion. Hibbard v. Baker, 141 Mich. 124; Roberts v. Bidwell, 136 Mich. 191. Taking the testimony of the witnesses for contestants, and giving the same full weight upon the question of the mental incompetency of testator discloses a case close to the border line of mental competency of testator.
The son Henry testified that he called on his father five or six times after Louise Billiet went there to live, and did not go oftener because he could see by Miss Billiet’s actions that he was not welcome; that there was nothing his father did to make him feel unwelcome ; that in the summer of 1917 he met his father on the street occasionally and his father did not recognize him until he spoke to him, when he recognized him and was friendly; that “he seemed walking like a man in a dream and talking to himself like, mumbling to himself”; that when he talked to him about things that were going on, or about something witness had read in the newspapers his father took the wrong meaning and that formerly he had understood such things fairly well; that for several months before and after the date of the- will the father gave him answers not pertinent to the subject the witness was talking about; that in 1913 he thought his father incompetent because he cams to witness and said he was worried over the power of attorney he had given him and claimed he had been told he had signed everything over to witness, and upon being informed by witness that he ought to know better than that and that he would be on the square, the father replied, “Yes, I ought to know better than to believe them,” and that was the reason he asked that a guardian be appointed for him; that he noticed some weakening of his father’s mind during the last year or year and a half of his life, and he was also induced to file the petition for guardianship because he was fearful his father was going to sign something without knowing what it was, and from his experience with his father and in handling his business affairs for him he was of the opinion that his father could not handle them himself; that from the general manner of his father’s appearance in the probate court when he was discharged from guardianship he was of the opinion his father was not as competent as formerly, and that his father there testified he had, six houses when he only had five, al though he had six tenants in the five houses. The testimony of this witness upon the question of mental incompetency of the testator has been quite fully stated as it is fairly illustrative of that given by the other relatives and witnesses for contestants.
Adele Cools, a daughter of testator, testified that her father, while living with one of the sons, where she also lived in 1912, became very much dissatisfied with the meals and everything and he was permitted to go to market and buy the provisions but did not seem to be able to get the right change or know the value of money; that she was married in August, 1912, a few months after the father left the home of his son, and up to the time of her father’s last sickness she never visited him although on friendly terms with him and gave as an excuse that her father had told her she would not be welcome to Miss Billiet and, therefore, he would rather not have her come; that the last two years of her father’s life he was very forgetful, always asking for her house number, although he knew the street, but never came to see her; that his business matters were always taken care of by some one else; that he had no education; was easily influenced and had a poor memory; that during the last year of his life her father, in her opinion, was not able to comprehend the will he executed; that he was 79 years of age when he died and was incompetent because of his age, and having no education he had no mind to do business. Many disinterested witnesses called by proponent gave testimony based upon ample opportunity to judge the mental capacity of testator, and detailed circumstances falling within their observation showing that testator was mentally competent and had reason for making the will in question.
Considering the fact that this uneducated man steadily improved and conserved his property through his own management for several years before he made his will, that he directed the attorney relative to the disposition he wanted to make of his property, and on that day the evidence shows was perfectly competent to make the will and that he had reason to feel his children had neglected him, and some of them had wronged him in trying to place him under guardianship, and that he had reason to feel grateful to proponent, and, giving all the weight to contestants’ evidence that it is entitled to receive, we áre of the opinion that the verdict of the jury was against the weight of the evidence and should have been set aside by the trial judge on that ground upon-the motion made by proponent.
We have examined the evidence claimed to bear out the charge of undue influence and feel that, while it presents an issue for the jury along with the charge of mental incompetency, the verdict as to undue influence was also against the weight of the evidence.
For the error in denying the motion to set aside the verdict the judgment below is reversed and a new trial granted, with costs of this court to appellant.
Steere, C. J., and Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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] |
Moore, J.
This is a proceeding brought for the purpose of testing the question of whether a woman may hold the office of justice of the peace. Some question is raised as to the method of procedure. The case was heard upon the merits in the court below, and as all parties interested are desirous of having it so disposed of here we will dispose of it upon the merits.
The defendant was elected justice of the peace in the township of Plymouth in this State at the April election in 1919 and duly qualified. She at that time was a citizen of the United States, upwards of 21 years of age and was an elector of the township of Plymouth. The plaintiff was sued before her and moved to quash the summons which was issued by her, claiming she could not hold the office.
In the recent case of People v. Barltz, 212 Mich. 580, the question involved was. whether women might serve as jurors in courts of record. In a well considered opinion, written by Justice Stone and approved by all the members of this court, the question was answered in the affirmative. If we apply the principles stated in that ease to the facts in this case the conclusion follows that an affirmative answer must be given to the question, Can a woman otherwise qualified hold the office of justice of the peace in this State?
The judgment of the court below is affirmed, with costs to the defendant.
Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Clark, J.
This case is reported in 204 Mich. 652. Michigan avenue runs east and west and connects the city of Lansing with the city of East Lansing. Defendant’s tracks are in the street, and in front of its station or waiting room in' Lansing the tracks are double. Plaintiff was a passenger from East Lansing to Lansing on one of defendant’s street cars, west bound. When the car stopped in the street at the station plaintiff with her daughter alighted. Another street car stood several feet behind the one from which plaintiff had alighted. She attempted to pass between the cars to cross the south tracks and the street to go to the station. She was struck and, injured by an east-bound car. Plaintiff’s allegations of negligence are set out in the former opinion. She had upon the second trial verdict and judgment for $6,680 which defendant reviews on error.
In the former opinion the law of the case was quoted from 4 R. C. L. p. 1253. A considerable part of appellant’s brief is devoted to criticism of that holding and- is an effort to have it overruled. The facts are substantially the same as upon the former trial. It is well settled that a rule of law) laid down by this court in the decision of a cause is to be applied upon the same state of facts in all subsequent proceedings in the cause. See Damon v. DeBar, 94 Mich. 594; Apsey v. Railroad Co., 104 Mich. 646; Hickox v. Railway Co., 94 Mich. 237. Under the facts and the rule announced in the former opinion the question of defendant’s negligence was for the jury and the refusal of defendant’s request for a peremptory instruction was- not error.
Defendant requested the following instructions:
“I instruct you that at the time of the accident in question the plaintiff was not a passenger of said defendant company, and that said defendant owed to plaintiff only the duty to use ordinary care as to her safety in going from the car from which she had alighted to the sidewalk or waiting room of said defendant.
“I instruct you that the relation of carrier and passenger existing between plaintiff and defendant at the time in question terminated when the plaintiff alighted from the car upon which she had been riding, and that the defendant owed her no further duty as a common carrier, and that at the time of the accident the relationship of passenger and carrier had ceased to exist and she had become a traveler upon the highway, and her duties and the duties of others toward her had only relation to the reciprocal rights which then existed between the carrier and herself.
“I instruct you that a street is not a passenger station for the safety of which a street railway company is responsible.”
The court instructed:
“Did defendant company operate their cars in such a manner and at such a rate of speed that, considering all of the circumstances of the case, the double track, the fact that they had stopped in front of the regular public waiting room, the fact that plaintiff had just alighted from the car and was going to said public waiting station, did they so run and operate their cars that defendant company was negligent under all the circumstances of the case. The Supreme Court of the State of Michigan have told us that when a railroad company stops a passenger train where other tracks are between it and the depot platform, the rights of people having business with such train and the duty of the company towards them are the same as if all of the intervening space between the depot and the train constitute the platform, and it is negligence on its part to allow another train to run between the passenger and the station at which the passengers are being taken on or discharged. They say further, in the case of the street car companies having regular stations at which the cars are in the habit, of stopping for persons to get on and off, the same rule applies as in the case of railroad trains, and a passenger while not absolved from the duty of exercising care for his safety, has the right to assume that tracks intervening between the place where he alights and the station, will be kept safe while he is crossing, and the mere fact that he fails to look and listen before attempting to cross such tracks does not, as a matter of law, constitute contributory negligence.”
The, instruction followed the law of this case as announced. It was not erroneous. The request was properly refused.
Contending that on its motion a verdict should have been directed for defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law counsel again insist that plaintiffs duty for her own protection against east-bound cars on the south track is to be measured by the holding in Clark v. Railway, 168 Mich. 457, and in Davis v. Railway Co., 191 Mich. 131, and is not different because she alighted at the station stop and was proceeding across the tracks to the interurban station. But we think that the rule requiring one about to cross a railroad to look and listen does not apply in all its strictness to one situated as was plaintiff, that the cases cited are not controlling and that the correct rule is stated in the former opinion. See Tubbs v. Railroad Co., 107 Mich. 108.
But counsel say:
“Even if the rule is to be different where a car is in front, of a waiting room, and it may be said that a passenger alighting might consider this fact in reference to the care to be exercised, still in this cáse, we are not confronted with this situation, because the plaintiff frankly admits that she knew cars passed at this point and knew that she might expect one to pass at the very instant that she walked into this car. We most respectfully submit that the plaintiff’s conduct here is without question such carelessness and negligence as should bar recovery.”
Plaintiff testified that she, upon getting off the car, did not look west for an approaching car on the south track and that because of the crowd she thought that she could not have seen it. She was familiar with the locality. Viewing plaintiff’s testimony in the light most favorable to her, as we must upon this motion, it appears that plaintiff was proceeding to the waiting room. It had been called by the conductor. Many passengers had alighted. They were “swarming” out from the car. Others had preceded her behind the car, across the tracks toward the station in safety. She meant to look from a point behind the standing car for approaching east-bound vehicles and cars. Before reaching the point for such observation she was startled by the call “Look out” of the motorman of the car in front of which she was passing and thinking he meant his car, she stepped out toward the south and was struck by the east-bound car. Plaintiff said that when she attempted to pass between the cars she knew she might expect to meet a car upon the south track, that they had the “habit” of doing that, but this testimony is qualified by her statement that she meant that cars were liable to run there but that she would not expect one to be running there. But assuming that it was the practice of defendant to run eastbound cars past cars standing on the north track in front of its station from which cars passengers were alighting and crossing the tracks to the station, and that such practice was known to plaintiff at the time of her accident, still it may not be said that plaintiff was guilty of contributory negligence, as a matter of law. Whether her conduct under all the circumstances, in any view of the case, was that of an ordinarily prudent person was for the jury.
Complaint is made that in the charge undue emphasis was given to the question of defendant’s negligence and that sufficient instruction as to the question of plaintiff’s contributory negligence was not given. The instruction upon the latter subject was brief and might well have been more comprehensive but the question was submitted. We think the charge as a whole submitted the issues to the jury and was not prejudicial to defendant.
Plaintiff’s counsel in argument urged as the law of this case and read from his notes the portion of the former opinion in this ease above mentioned. This is said to be error, citing Laughlin v. Railway Co., 80 Mich. 154, where it is said (quoting from syllabus):
“The reading by counsel for plaintiff of the former opinion in this case, accompanied with a statement that the court had passed upon the question of contributory negligence favorably to plaintiff, is held to have been highly improper.”
Counsel did not state to the jury in such argument that the language was a part of the opinion upon the former trial. It was urged as the law upon which the case was being tried and it was argued that the court would so charge the jury and that strict attention should be paid to the charge. The right of coun sel to argue to the jury the law as claimed has been recognized. See Fosdick v. VanArsdale, 74 Mich. 302; Edwards v. Common Council, 96 Mich. 625.
Following objection the court at the time instructed the jury:
“You understand, gentlemen, that whatever theory of law Mr. Warner may have and may state to you, that that is not the theory of the law that you must take as your guide unless the court so charges you. You must take your law from the court and your facts from Mr. Warner, and if Mr. Warner misstates the law, as the court will give it to you, he does it at his own peril.”
No request to charge upon the,subject was preferred. The court in his charge as we have seen also used the language of the former opinion. We do not think defendant was prejudiced by the argument.
Error is assigned upon the denial of a motion for a new trial on the ground that the verdict was excessive. We agree with the trial court. There was an abundance of evidence to sustain the verdict. We have considered all questions raised and discussed and find no reversible error.
Judgment affirmed.
Steere, C. J., and Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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Fellows, J.
The plaintiffs as vendors entered into a land contract on October 27, 1919, with Robert W. Cowley and Thomas B. Cowley as vendees for the sale of certain premises located in Ingham county. The purchase price was $4,500. The contract contained the following provision as to payments:
“Said second party, in consideration of the. covenants herein made by first party, agree to purchase of first party the above described premises, and to pay therefor to first party, or legal. representatives, at Mason, Mich., the sum. of forty-five hundred dollars in manner as follows, viz.: One thousand dollars in cash, the receipt whereof is hereby acknowledged, and four hundred dollars payable annually, with the privilege of paying more at any time.” * * *
Thereafter plaintiffs tendered to defendant county treasurer the sum of $17.50 as payment of the specific tax provided for in Act No. 91, Public Acts 1911 (1 Comp. Laws 1915, § 4268 et seq.). The defendant under his construction of the law demanded $22.50. Plaintiffs thereupon instituted proceedings for mandamus resulting in the court below in a refusal of the writ. We allowed this writ of certiorari to bring the proceedings before us.
The contract is, the ordinary form of land contract and counsel for the defendant points out that in its first clause the vendors agree to sell the premises; for the sum of $4,500 “to be paid by second party to first party,” and the following language found in the clause above quoted:
“and to pay therefor to first party or legal representatives at Mason, Mich., the sum of forty-five hundred dollars.”
Counsel also insists that as a receipt is not conclusive and may be disputed, a contingency may arise which would make the contract security for the payment of the full purchase price and he, therefore, urges that the sum of $22.50 is the proper amount to be collected.
This statute was before the court in Detroit Land Contract Co. v. Green, 202 Mich. 464, and we there said, speaking through Mr. Justice Stone:
“It seems to us that the county treasurer can only be guided by what appears upon the face of the instrument; and, if that fails to show the first payment to have been made before the execution of the contract, then the tax must be paid on the full consideration stated therein.”
The opinions of the attorney general to which our attention is challenged by counsel for defendant are. to the same effect; running through, them all is the thought that the county treasurer is to be guided by the face of the instrument itself in determining what the amount secured thereby actually is. It is true that a receipt is not conclusive and if the sum of $1,000 had not actually been paid as recited in the contract the vendors by establishing that fact would have a lien for its payment. But this would require evidence aliunde. The contract, and the contract alone, is the guide for the computation of the tax.
Does this contract on its face show that the down payment of $1,000 had been paid before its execution? If so, such down payment was not secured by the contract. We think this question must be answered in the affirmative. While there are terms of futurity used in connection with the purchase price, when we turn to the provision of the contract having reference to the times and terms of payment we find an unequivocal acknowledgment that the down payment had in fact been paid. This portion of the contract was a receipt stating that at the very time the vendors signed this contract they had in their possession the cash for such down payment. Recurring again to the case above cited, we find-this significant language:
“It is the language of the contract which should control. Had the contract stated in substance ‘$100 which sum has been heretofore paid,’ or ‘$100 the receipt of which is hereby acknowledged,’ we would have a. different question before us.”
As foreshadowed in that opinion we think it must be held that where the contract shows upon its face that at the time of its execution the down payment had in fact been made, the specific tax may not be collected on such down payment, and that the language of the contract before us does so show.
It follows that the case must be reversed with direction to issue the writ. As the question is a public one and defendant a public officer, no costs will be allowed.
Steere, C. J., and Moore, Stone, Clark, Bird, and Sharpe, JJ., concurred. Wiest, J., did not sit. | [
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] |
Wiest, J.
While engaged in unloading a car of lumber and piling the same in the yard of the Ternes Coal & Lumber Company Saturday evening, June 28, 1919, John Zoltowski fell and broké his arm. He was employed by the company as a teamster but did not work Saturday afternoons. The day he was hurt he quit his work as a teamster at 1 o’clock in the afternoon. Another teamster by the name of Petsky, also with Saturday afternoon free, had taken the job of unloading a car of lumber for the company, for which he was to receive $12, and he agreed to give plaintiff $4 if he would help him, and it was while helping Petsky plaintiff was injured. The industrial accident board held that plaintiff was injured while in the employ of -defendant company and awarded him $120 compensation and $50 for medical attention. The company brings the case here and seeks a reversal of the award on the ground that plaintiff at the time of the injury was not in the employ of the company but was engaged with Petsky. in performing special work in which .Petsky was an independent contractor.
It clearly appears that plaintiff quit his employment as a teamster for the company at 1 o’clock in the afternoon of the day he was injured and was from that .hour master of his own time for the day, and in accordance with his previous arrangement with Petsky undertook to help Petsky perform the job he had taken .and earn the agreed share of the price.
The holdings of this court upon the question of what constitutes an independent contractor are epitomized in 26 Cyc. p. 1546:
“An independent contractor is one who, carrying on .an independent business, contracts to do a piece of work according to his own methods, and without being subject to control by his 'employer as to the means by which the result is to be accomplished, but only as to the result of the work. Generally the circumstances which go to show one to be an independent contractor, while separately they may not be conclusive, are the independent nature of his business, the existence óf a contract for the performance of a specified piece of work, the agreement to pay a fixed price for the work, the employment of assistants by the employee who are under his control, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results.”
The defendant company had no right to control the method or means by which the result to be paid for was to be accomplished by Petsky. A result was to be paid for and Petsky was free to accomplish the work alone or divide the labor and pay with others subject to no control by the company. The right to have the result in accordance with the contract and to inspect for the purpose of seeing that specific work was done in compliance with the contract did not prevent Petsky from being an independent contractor. 26 Cyc. p. 1549. Lenderink v. Village of Rockford, 135 Mich. 531.
The fact that Petsky was an employee of the company in respect to his regular work did not prevent his being an independent contractor, and plaintiff, having quit the employment of the company at 1 o’clock and being master of his own time, had a right to devote the same to any purpose he saw fit. Having quit the employment of defendant company for the day, and being master of his own time when he undertook to help Petsky unload the car of lumber under an agreement that Petsky should pay him a third of what he received for the job, the plaintiff was engaged by Petsky and not by the defendant company and was not in the employ of the defendant company. The case is ruled by Gall v. Detroit Journal Co., 191 Mich. 405; Perham v. American Roofing Co., 193 Mich. 221. See, also, Holbrook v. Olympia Hotel Co., 200 Mich. 597; Woodhall v. Irwin, 201 Mich. 400.
Upon the undisputed facts the board should have determined that the injury to plaintiff did not arise out of and in the course of his employment with the defendant company, but while working for Petsky, an independent contractor.
The award is vacated, with costs to defendant company.
Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Sharpe, J.
John C. Palmer died at Royal Oak on January 30, 1919, aged 94 years, leaving a last will and testament, executed on March 25, 1917, by the provisions of which all of his property was devised and bequeathed to the plaintiff, a daughter, and the defendants, his two sons, in equal shares. On July 19, 1918, about 6 months before his decease, he executed two deeds, one conveying a farm of 120 acres in Hillsdale county, and the other a house and lot in Hudson, Lenawee county, both of the value of about $10,000, to the defendants as tenants in common. This suit is brought by the plaintiff to set aside these deeds. The bill alleges that the grantor was mentally incompetent and unduly influenced by the defendant Elwood C. Palmer at the time the deeds were executed, and further that they were executed without consideration and are a fraud upon the rights of the plaintiff as a daughter and legatee under the will of John C. Palmer. It is alleged that the defendant Langford W. Palmer had no knowledge of his father’s intention to so convey his property, and is now ready and willing to release any rights acquired by him thereunder. It is also alleged that the defendant Elwood C. Palmer, after his father’s death, agreed to execute a writing which would secure to plaintiff her share of the estate as devised to her in her father’s will. The proofs were taken before the trial court, who found against the plaintiff. From a decree dismissing her bill of complaint, the plaintiff appeals.
The testimony shows that the deeds were made without consideration, and that by them the grantor denuded himself of substantially all of his property, without any reservation of any interest in himself or any provision, oral or written, for his future support and maintenance. By them he excluded his daughter, the plaintiff, from any participation in his estate except as to a small amount of personalty of which he died possessed. Such action on the part of a man 94-years of age is,, of itself, so unusual as to compel a more than ordinarily careful scrutiny of the record before us. We have read it with much care.
At the time of his death, John C. Palmer was living in the home of his granddaughter, Eva Kennedy, a daughter of his son Elwood, at Royal Oak. Previous thereto, he had lived for several years in the home of the plaintiff at Hudson. He then lived for a time with the tenant on his farm. In March, 1918, he was taken by Elwood to the home of Mrs. Kennedy. While at plaintiff’s home, he had indorsed a note for her husband for $2,000, which was unpaid at the time the deeds were made.
The home of the defendant Langford is at Hagerstown, Maryland. A few days after the deeds were made, he visited his father at Royal Oak. He was informed by Elwood’s wife about the deeds and talked with his' father, and afterwards with Elwood, about them. He testified that Elwood said—
“The deeds were drawn to avoid the inheritance tax and the probating in two counties, and to protect us against these notes. After these notes were paid, Mrs. Power was to have her share.” •
The deeds were prepared by Mr. Hoxie, an attorney at Royal Oak. Mbs. Kennedy testified:
“About a week or some such matter before the deeds were drawn, he began to talk to me about having the deeds made. It is hard to state exactly what he said. He said, T want to fix my property, and I think I will deed the farm,’ and h© spoke of my getting some one to come and see him about the deeds. I went and saw Mr. Hoxie and told him grandfather would like to have him come down to the house. * * * I heard him tell Mr. Hoxie the deeds were to; be made to Elwood and Langford. There was absolutely nothing said about the deeds being made for the purpose of evading probating or avoiding paying inheritance tax. I never heard grandfather say anything about the deeds being made for that purpose, or anything like it. His exact words were that he didn’t care if Mrs. Power had a dollar, he would never give her anything.”
On cross-examination, she said:
“He talked about his having signed some papers at the bank with him (Mr. Power). I think he said $2,000, a note he claimed he had indorsed there or signed. He was very much worried about it. My father was there at my house often. My father read to my grandfather more than he talked, but they talked some, of course. I don’t remember hearing my father and grandfather discussing the note or paper that he had indorsed at the bank with Mr. Power, but I know grandfather talked with Langford about it when he was there. He was worried about it. He was afraid his estate would have to pay that note that he had indorsed there at the bank.
“Q. And he talked to Langford about that, that he had made those deeds for that purpose, didn’t he?
“A. I think so.
“Q. You heard your gi-andfather tell that to Mr. Palmer?
“A. I didn’t always hear the conversations with Uncle Langford.
“Q. But you did hear that part of it in which he talked with Langford about this paper he had indorsed at the bank which was worrying him, and he had made those papers to protect his estate. Isn’t that what he told your Uncle Langford?
“A.. I think it was. * * *
“My father was there the night the deeds were executed. He came in to supper. He knew what the contents of the deeds were there that night.
“Q. Did he appear at all surprised that your grandfather had made the deeds that day?
“A. No, I don’t remember that he was surprised.
“Q. In fact, he knew that was what was going to be done, didn’t he?
“A. Probably he did, I don’t know that he did. I don’t remember of talking with my father about my grandfather wanting to get a lawyer to 'draw the papers. During all the time after my grandfather came, m!y father was a frequent visitor at my house.”
Bennett Houston, the tenant on the farm, testified that he saw a notice in the paper of the transfer of the farm and soon after had a talk with Elwood about it.
“I told him I understood there was to be a change in the property and wanted to know who the new boss was to be. He said there wouldn’t be any new boss, that it would be just the same as it had been, that his father had the running of it as long as he lived just the same; that the transfer was made to save probating. He said the transfer had been made to save probating.”
The Sunday following the funeral of John C. Palmer, Elwood and Langford and Mr. and Mrs. Power were at G. Harvey Smith’s home for dinner. Mr. Smith was an old friend of the family. He and his wife and Langford all testified that, after Mr. and Mrs. Power left, Langford said that they were going to divide the property equally among the three heirs and Elwood assented to it; that Langford was going to Adrian the next day to get a copy of the will which had been deposited with the judge of probate, and Elwood was going to the farm,, and that they would then get together and divide up. The plaintiff and her husband both testified that Elwood stated after the funeral that the deeds were made to avoid the inheritance tax and the expense of probating in the two counties.
It further appears, without dispute on the part of Elwood, that an agreement was to be drawn up by Judge Chandler providing for an equal division of the property as provided for in the will. Such an agreement was prepared and signed by Langford and plaintiff. Elwood admits that he agreed to sign it but changed his mind. His claim is that he was advised by his lawyer that the writing amounted to a quitclaim deed to plaintiff of a one-third interest in the property and that he only agreed she should have her interest after the property was sold.
It seems clear to us from the proofs submitted that John C. Palmer had no intention, when he executed these deeds, to divest himself of substantially all the property he owned and thus render himself subject to the bounty of his two sons. The only statements made by him, so far as the proofs show, as a reason for this unusual act on his part, were that he said to Langford, in the presence of Mrs. Kennedy, that he was worried about the note he had indorsed for plaintiff’s husband and he made the deeds to protect his estate therefrom, and that he said to Mr. Hoxie, the attorney who drew the deeds, in answer to a question as to why he was doing it, “I have had more enjoyment since I have been here than I have had since my wife died.” In addition to these statements of the deceased, we have the statements of Elwood to Langford and to the tenant Houston which tend strongly to show that the grantor did not intend by the deeds to interfere with the disposition of his property as made in his will. After the death of his father, we find Elwood content that the plaintiff should have her undivided one-third of the property and yielding assent to the preparation of a contract which should so provide. While what was then said and done are in no way legally binding upon him, it is quite convincing that he knew his father had no intention of depriving plaintiff of the interest in his estate provided for her in the will.
While Elwood admits that there was talk at plaintiff’s homje and also at the home of Mr. Smith that papers should be prepared which would secure to plaintiff her equal share of the estate, he denies that he took part in such conversation. There is an abundance of evidence to show that he agreed to such an arrangement. He admits writing a letter to Lang-ford, after he had refused to sign the writing prepared by Mr. Chandler, in which he said,
“My understanding of that contract was that Dell was to have her share of the property when it was sold and the estate settled.”
He was then asked:
“Q. And that was the agreement as you understood it? As you say here, that was the agreement that you and your brother and your sister made there in her home following your father’s funeral, wasn’t it?
“A. Yes, sir. I want to tell you now, a man can change his mind.”
While plaintiff does not seek to enforce any rights under the parol agreement, we think what was said and done relative to it was admissible and may be considered in determining the purpose for which the deeds were made. While Elwood denies that he knew anything about the making of the deeds until after their execution, Mrs. Kennedy testified that he came to her home just after they were signed and that he then knew the nature of the deeds which had been made. A reasonable inference may be drawn from this and- other testimony that he had talked with his father about the deeds and knew the latter’s, purpose in making them. His willingness immediately after his father’s' burial to arrange matters so that his sister would have her share of the estate tends strongly to establish the fact, as claimed by plaintiff, that the deeds were not intended to so operate as to deprive plaintiff of her rights under the will. Admissions against interest are always considered convincing proof. 16 Cyc. p. 943 et seq.
Elwood also denies much, if not all, that is testified to relative to statements made by him as to the purpose for which the deeds were made. But his testimony lacks that fairness and frankness necessary to give it weight when contradicted by so many witnesses. While admitting that his brother talked to him and told him that he had conversed with his father about the deeds, he denies there was any talk about why the deeds were made. Yet in answer to the next question put to him, he says that Langford told him he didn’t think their father ought to have made the deeds to them. There are many other parts of his testimony so utterly inconsistent with his conduct that we feel but little consideration should be given to it.
We have not overlooked the testimony tending, to show that Mr. Palmer claimed to have been ill-treated and neglected while at the home of plaintiff, or that of Mr. Halstead, an old friend, who testified that Mr. Palmer told him he had made the deeds and disposed of his property as he wanted it to go. He would not have been likely to have expressed to Mr. Halstead the reason he gave Langford for making the deeds. He was familiar with the effect of wills and conveyances, and had acted as administrator of estates. Had he not been content with the provisions in his will, he could easily have changed it, at less expense and trouble than was involved in making the deeds. The means employed are persuasive that his purpose was not to convey his property to his sons to the exclusion of his daughter, but to prevent his estate from being chargeable with the payment of the note he had indorsed for Mr. Power and also to save the inheritance taxes and the expense of probating his will.
It appears clearly from the proofs that the deeds were not delivered to Elwood by his father or by his direction. Mr. Hoxie testified that after the deeds were executed Mr. Palmer delivered them to him “and asked me to have them recorded and returned.” He was not asked what he did with them after having them recorded, but Elwood testified that the deeds were delivered by Mr. Hoxie to him. A deed takes effect from the time of its delivery and not from the time of its date, execution or record. While the recording is presumptive evidence of delivery, such presumption may be rebutted. See cases cited in Lawton v. Campau, ante, 535. In that case it was said:
“The object of delivery is. to indicate an intent on the part of the grantor to give effect to the instrument.”
We think the presumption arising from the recording is well rebutted by the facts here established, and that there was no intent on the part of the grantor to convey' a present or even future estate to the grantees. This conclusion is supported by the further fact that Mr. Palmer exercised full control over the property during his lifetime.
Under the facts appearing in this record, established as we think by convincing proof, it would work a rank injustice to permit these deeds be stand as conveying title to the defendants. A deed made without consideration, by which an aged man divests himself of substantially all of his property, without any provision for his future support and maintenance, is unconscionable. Nolan v. Nolan, 78 Mich. 17. As was. said in Akers v. Mead, 188 Mich. 277:
“Previous decisions are of little assistance in determining these Questions, and each case must be determined upon its own- facts.”
The language used in the following cases will, however, be found illuminating on the question presented: Seeley v. Price, 14 Mich. 541; Van Donge v. Van Donge, 23 Mich. 321; Duncombe v. Richards, 46 Mich. 166; Smith v. Cuddy, 96 Mich. 562; Lockwood v. Lockwood, 124 Mich. 627; Longenecker v. Graham, 176 Mich. 84.
We have examined with care the many cases cited and quoted from by defendant’s counsel in their carefully prepared and exhaustive brief on the question of undue influence, but do not think them controlling on the facts here presented.
We have no doubt that, had Mr. Palmer in his lifetime asked to have these deeds canceled, he would have been granted such relief. In view of the facts as they appear in this record, we think the plaintiff is entitled to the relief she prays for in her bill of complaint. A decree may be entered here declaring these deeds to be null and void. Plaintiff will recover costs of both courts against the defendant Elwood C. Palmer.
Steere, C. J., and Moore, Wiest, Stone, Clark, and Bird, JJ., concurred. Fellows, J., did not sit. | [
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