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Sharpe, J.
A verdict after trial before a jury was rendered on April 19, 1919, against the plaintiff in favor of Neson Rosen for personal injuries sustained by him, due to the negligence of plaintiff. On April 22d, an order, was entered giving plaintiff 20 days in which to move for a new trial and 60 days in which to settle a bill of exceptions. On April 26th, judgment was entered on the verdict. On May 2d, plaintiff ordered a copy of the transcript of the testimony from the stenographer, which was delivered on August 11th. On September 18th, plaintiff filed its motion for a new trial, and served a copy thereof on Rosen’s attorney on September 25th. On December 1st, plaintiff’s attorney wrote defendant, who resided at Flint and before whom the cause had been tried in the Wayne circuit, relative to the hearing of such motion, and was referred by him to the presiding circuit judge. After some further correspondence, defendant went to Detroit on December 22d to hear such motion, but plaintiff’s attorney was not present and claims he was not advised that such motion could then be heard. On April 27, 1920, plaintiff’s attorney again wrote the defendant, who fixed May 8th for the hearing. When it came on to be heard on that date, the attorney for Rosen moved to strike the motion from the files for the reason that when made the time had elapsed for filing same and no leave granted therefor. This motion was granted. Plaintiff then filed a motion to extend the time for moving for a new trial. This was noticed for May 15th, but delayed, through-no fault of plaintiff, until September 11th, when it was heard and denied. Plaintiff now asks mandamus to compel defendant to grant such motion.
The return of the defendant, after setting up the chronological history of the proceedings had and taken relative to said motion as above set forth, concludes as follows:
“A perusal of the above, as well as an examination of the affidavit of relator’s attorney, discloses that three months intervened between the 18th of September, 1919, and the middle of December, 1919, during which time no effort was made to obtain a hearing on its motion for a new trial. It further appears from said affidavit, as well as the foregoing, that from the latter part of December, 1919, until the 27th of April, 1920, no effort was made by relator’s attorney to obtain a hearing on its motion for new trial. In view of the fact that the time in which to file a motion for new trial expired on May 12th, 1919, and the motion asking for an extension of time in which to move for a new trial was not filed until September 23d, 1920 (this date is erroneous), I felt that in the exercise- of my best judgment and discretion that defendant’s motion should be denied.”
The time for moving for a new trial, as extended by the court, expired on May 12, 1919. After that date, plaintiff could move only by leave of the court. While courts of general common-law jurisdiction have inherent powers to grant new trials, the time within which motions therefor can be made without leave of the court is limited by Circuit Court Rule No. 48 to five days unless further time be allowed therefor. The rule reads:
“Motions for a new trial, * * * with the reasons on which they are founded, shall be filed and a copy thereof be served on the opposite party within five days after the rendition of a verdict, in the case of a trial by jury, * * * or within such further time as shall be allowed therefor by the court or judge.” * *
Such limitation, however, in no way interferes with the common-law discretion of the court to hear such motion at a later day, but imposes on the plaintiff the necessity of procuring leave of the court to do so. If unable to submit the motion within the time limited therefor, the court may be asked before its expiration to extend the time therefor and after its expiration to grant permission to make such motion. In the early case of People v. Wayne Circuit Judge, 20 Mich. 220, this court said that former Circuit Court Rule No. 31, similar in effect except as to time, and former Rule No. 72, allowing the circuit' courts to extend or shorten the time, were “not intended in any way to interfere with the common-law discretion of the courts, but only to fix a time beyond which no one could move as a matter of right and without leave.” In Reynolds v. Newaygo Circuit Judge, 109 Mich. 403, this court refused to vacate an order granting such, leave when made after payment of a judgment, affirmed on appeal, and nearly two years after the judgment was rendered. Reynolds v. Sweet, 104 Mich. 252.
Plaintiff’s motion now under consideration! was one “to extend the time in which to file and argue a motion for a new trial.” It is treated, however, as one appropriate for the purpose desired and we so consider it as, had the matter of its form been raised, an amendment would no doubt have been permitted. The question then presented is whether or not there was an abuse of discretion in defendant’s, action in denying it. Plaintiff’s counsel seeks to excuse the delay, largely by the fact that the defendant was not ever present, in the Wayne circuit court to hear it. Rosen secured' his judgment in April, 1919. It is not claimed that either he or his counsel are in any way to blame for the delay. The trial judge, in the exercise of the discretion vested in him, denied plaintiff’s motion. We must refuse to interfere therewith. See Chicago, etc., R. Co. v. Genesee Circuit Judge, 89 Mich. 549; Hayes v. Ionia Circuit Judge, 125 Mich. 277; Zeilman v. Fry, 213 Mich. 504.
The petition is dismissed, with costs to defendant.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred. | [
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Wiest, J.
On February 9, 1918, while) working for the defendant company in the capacity of a motor tester, plaintiff received a fracture of his upper right arm. This fracture has not mended and has left his arm practically useless. He was paid compensation, under an approved agreement, until July 24, 1918, when he returned to work, but being unable on account of his injury to perform the duties of a motor tester, he was given light messenger work ini the testing department and paid two cents per hour more than he was earning at the time of his injury.
He continued such work until August 27, 1919, when he went to Mayo Brothers’ clinic at Rochester, Minnesota, at the suggestion of defendant company, to have a bone-graft operation performed on his injured arm, and the expense of the trip, including the bill of Mayo Brothers for $525, was paid by defendant. Compensation under the agreement was paid him from August 27th up to December 19, 1919, when he was employed by defendant as a motor inspector at 70 cents per hour and his compensation under the agreement ceased. He refused to sign final settlement receipts, and on October 22, 1920, defendant .petitioned the industrial accident board to order payment of compensation to be stopped and to have the case closed. Plaintiff answered and also filed a petition asking for the allowance of past due compensation. The board denied defendant’s petition and granted plaintiff’s. Defendant brings the case to this court by writ of certiorari, claiming the order of the board is void. Defendant contends that:
“The plaintiff is able to perform the work of motor inspector, skilled labor of the same class that he was performing at the time of his injury, and is able to earn thereat more wages than he was earning at the time of his injury in the position of motor tester, which position is skilled labor of the same class as motor inspector, and therefore, after December 19, 1919, the date upon which he commenced work as a motor inspector, he should, as a matter of law, be precluded from receiving compensation.”
It is said in the brief of counsel for defendant that the test of disability, being the ability to. earn in the same employment, is not here assailed. Defendant asks us to hold that in the case of skilled labor such labor should be classified so that the holdings in Leitz v. Labadie Ice Co., 211 Mich. 565, and Miller v. Fair & Sons, 206 Mich. 360, with reference to ability to perform commton labor, although not of the same particular kind, does not constitute the test of disability, provided there is no diminution of earnings, be applied to skilled labor falling within a class in which previous knowledge and training fits the party to perform. This means, then, if we should so hold, that if a skilled laborer is so injured as to debar him from ever continuing the same employment, yet if his skill and training and acquired knowledge fit him for doing work somewhat allied thereto and which, he can perform without diminution of earnings, then from the time he enters upon such new work and earns thereat as much or more than before' injury, his compensation on account of the injury must stop. No precedent for such a holding has been called to our attention, and counsel for defendant say the point is one of first impression in this State.
Just how skilled labor is to be classified is not made apparent. If classification is to proceed upon the theory of employments closely allied in skill and training, then the statute making the test the impairment of his earning capacity in the employment in which he was working at the time of the accident does not mean what it says.
The board found from the evidence that:
“Said applicant at the time of his injury was employed as a motor tester, which employment the board finds to be a skilled work and a distinct and particular employment, requiring years of experience in motor building and dismantling in order to become competent thereat.”
That plaintiff was wholly incapacitated as a motor tester is established. The foreman of defendant’s motor testing department testified, that he would not hire a motor tester with one hand, if he could get a man with two hands, for there are some operations in which a tester needs both hands; that the training necessary to become a motor tester takes at least two years. The same witness testified with reference to the work of a motor inspector that all a motor inspector has to do is to listen for defects in the motor, generally doing no work in connection with the motor. An experienced motor tester in the employ of defendant and familiar with the duties of a motor inspector testified:
“Q. Is there any difference whatsoever between the work of a motor inspector' and a motor tester?
“A. There is.
“Q. Is there any similarity at all between the two jobs?
“A. Yes.
“Q. What similarity — where are the two the same?
“A. The motor tester operates the motor in its running position while he makes his disposition as to its running conditions; whereas the motor inspector, as stated before, he merely goes over these different parts to see whether or not they are complete.
“Q. Then there is nothing similar between the two kinds of work, is there?
“A. I don’t think so.
“Q. Could a man who was a motor inspector without any further training, instruction or education, immediately step in and become a motor tester?
“A. Not immediately.”
The witness also stated that in his opinion it would take about six months, with proper training, for an experienced motor inspector to become a motor tester.
The Wisconsin statute relative to “the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the-time of the accident,” is identical with our statute.
In International Harvester Co. v. Industrial Commission, 157 Wis. 167 (147 N. W. 53, Ann. Cas. 1916B, 330), it was said of such provision:
“This court has held that this statute was plain and meant just what it said, and recovery was allowed for total disability because the employee was unfitted by his injury to follow the occupation in which he was engaged when injured, although it was shown without dispute that he was capable of earning substantial wages in other occupations.” Citing Mellen Lumber Co. v. Industrial Commission, 154 Wis. 114 (142 N. W. 187, L. R. A. 1916A, 374, Ann. Cas. 1915B, 997).
The question is not new in this State. Woodcock v. Dodge Bros., 213 Mich. 233; Foley v. Railway, 190 Mich. 507; Jamison v. Newhall Co., 200 Mich. 514; Myers v. Wadsworth Manfg. Co., ante, 636.
Defendant claims to have no quarrel with such holdings but asks us to place a meaning upon the occupation in which an employee is injured commensurate with ability to turn his skill, training and knowledge acquired in one employment to use in another closely related thereto. The argument is ingenious but to accede to it would start the thin edge of the wedge to a riving of the clear terms of the statute and open the field to equitable and conjectural considerations now closed by the statute. We must stick to the statute and leave defendant to present the equity of its position to the legislature.
The defendant contends that plaintiff was not entitled to additional compensation from February 9, 1918, the date of his injury, to December 19, 1919.
On July 24, 1918, plaintiff returned to work and was rated by defendant as a motor tester, but was not such in fact, as he was given only light messenger work on account of his injury. Defendant concedes that plaintiff was unable to perform the duties of a motor tester but says that rather than have him idle and drawing compensation of only $10 a week under the agreement, it philanthropically employed him in his old position, giving him only light messenger work to do and paid him his former wage and two cents per hour added, or $24 per week.
Again we must hold that this raises an equitable question barred from consideration as the law now. stands, and we cannot hold that it was error for the hoard to award him compensation on the ground that from the time of the accident he was wholly incapacitated from earning any wages in the employment in-which he was engaged at the time of the accident.
The determination of the industrial accident board is affirmed, with costs to appellee.
Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Clark, J.
The plaintiff was assaulted by defend ant Barnhilse, a collector for defendant, the White Sewing Machine Company. The trouble arose during one of the visits of Barnhilse at plaintiff’s home to collect installments due on a contract, of purchase of a sewing machine by. plaintiff from the defendant company. One Geldhof was the company’s manager for the district in which Barnhilse was employed and in which plaintiff resided. Both manager and collector, after several efforts, had not succeeded in collecting past due installments from plaintiff, due, as plaintiff claims, to the fact that he was then unemployed. Finally, the manager called at plaintiff’s home and said,' according to the testimony of plaintiff’s wife:
“ ‘My collector was down there and got one of his “stalls” again, these stalls won’t work on us, we have to have the money. Now,’ he says, ‘your husband does-n’t intend to pay his bills and he can’t put those stalls over on me at all.’ He said, 'He has got to come across with the money,’ he says 'he is nothing but a black crook, he is worse than nothing.’ He said, 'Now remember, Mrs. Moffit, I know a lot of people around the Square and these individuals have relatives and I am going to make you a lot of trouble, no matter what it costs me, whether it is one thousand or five, I have the money to back it, in fact,’ he says, ‘the company is paying me a handsome salary; if you are a mind to put it that.way to get the money, and that is what I am here for. Now,’ he says, T will give you until tomorrow morning at ten o’clock to come down and pay me that money or I will garnishee you for every cent you are worth. He says, 'The only way to get out of it is to pay for the machine.’
“I didn’t say much of anything. I said, T don’t like all this trouble and you might better take the machine.’ He said, ‘No, I could take the machine if I felt like it and sell it again for as much as we sold it to you, but' I am .not going to do it, you are going to pay for the machine.’ He said, 'The-way you people treat me you don’t intend to pay me but I am going to show you that you are going to pay for it.’ ”
She also testified:
“The next thing that happened, Mr. Barnhilse came up on Saturday, the time of the quarrel, about six-thirty or seven o’clock in the evening; we were getting ready to go down town. * * * My husband went to the door and Barnhilse said, ‘What are you going to do?’ He said, T ain’t going to do nothing, take the machine, I have taken all the dirt I want from you people, take the machine, that is all there is going to be to it.’ Barnhilsei says, T am not going to take the machine, I am after the money,’ and one word led to another, lots of things said. One said he was going to take the machine and the other fellow said he wasn’t until my husband stepped out of the door. I spoke up and said, ‘Don’t quarrel, take the machine and save all this trouble.’ Mr. Barnhilse said, ‘Shut up, I am not dealing with you, I am dealing with Mr. Moffit.’ I said, T am the one who has taken all the dirt, the one who has had to use the machine and I think I can go without it, and you better take it and save all trouble.’ I says, ‘You better go downstairs and save all trouble.’ He said, T dare you to come out and put me out and I double dare you.’ * * *
“I kept still then, I thought I would let the men folks fight it out. The next thing I saw, or heard, was my husband stepped outside the door and he tried to talk to him and tell him if he couldn’t wait to take the machine, and the next thing I knew why, he began to use vile language; Barnhilse did. * * * He said, T came here to get the money or to take it out of your damned hide.’ * * *
“When my husband opened the door Mr. Barnhilse said, ‘What are you going to do about this?’ There was a screen on the door. My husband opened it and stepped outside and talked with Mr. Barnhilse. He was out in the hall in front of the door. My husband said, T ain’t going to do anything, you are going to take the machine back, I have took enough of your dirt, you can have it.’
“Q. Do you know what he meant by that?
“A. He meant he had taken enough of their slang and all this kind of thing. And just before that, Geldhof had been up there; the reason he got mad and told Bamhilse this was because Mr. Geldhof had been up there and abused me two or three days before that.
“Q. He hadn’t abused you two or three days before that?
"A. Geldhof had.”
She testified further to the use of vile epithets and that Barnhilse on that occasion said, “Don’t try to pull anything over on me,” “I came here to get the money,” “I am going to have the money,” and again of threats to get the money or take it “out of his hide,” and that “He (plaintiff) didn’t get a chance to say any more before he hit him.” Plaintiff, claiming damages resulting from the assault, had verdict and judgment against both defendants for $750. The defendant company has brought the case here by writ of error. Appellant contends that it was error to refuse to direct a verdict in its favor as requested, on the ground that the wrong was. the wilful and independent misconduct of its agent, the collector. The plaintiff claims that the tort was in course of the employment, to further the collection of money the duty of the collector, to coerce and to compel payment, to carry out and accomplish the instructions to collect. These claims of the parties were submitted to the jury in a careful and comprehensive charge. Upon the facts as claimed by plaintiff a verdict in his favor may be sustained under the holdings in Zart v. Machine Co., 162 Mich. 387, and Canton v. Grinnell, 138 Mich. 590. In the case of Davidson v. Restaurant Co., 201 Mich. 389 (L. R. A. 1918E, 704), the assault upon plaintiff by defendant’s servant was his own wilful and independent wrong and not of his employment for which his master was not liable, and Ducre v. Lumber Co., 168 Mich. 49 (47 L. R. A. [N. S.] 959), cited by counsel, may likewise be distinguished, and in that case the cases of Zart v. Machine Co., supra, and Canton v. Grinnell, supra, are distinguished and other cases cited. See Cook v. Railroad Co., 189 Mich. 456. See, also, 14 L. R. A. 737; 6 L. R. A. (N. S.) 567; 9 L. R. A. (N. S.) 475; 12 L. R. A. (N. S.) 1155. And see 26 Cyc. p. 1539, and cases cited in the foot notes.
In the case at bar, if, as appellant claims, the assault was the independent misconduct of the collector resulting from a personal quarrel, the company would not be liable. But if, as plaintiff claims, the assault was to coerce and to compel payment, to accomplish the instructions to collect, it would be within the scope of the collector’s employment and appellant would be liable. See, Bergman v. Hendrickson, 106 Wis. 434 (82 N. W. 304, 80 Am. St. Rep. 47). As to appellant’s liability the evidence adduced by plaintiff made a question of fact for the jury.
It is said that the denial of a motion for a new trial on the ground that the verdict is excessive and against the great weight of the evidence is erroneous. A reading of the record satisfies us that the trial court is clearly right in such denial.
We find no other meritorious question for discussion and no reversible error.
Judgment affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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] |
Fellows, J.
On April 12, 1917, defendant Borden’s Condensed Milk Company entered into a contract with defendant Covell Construction Company for the erection of a condensing plant at Sandusky. The contract price was $65,400; there were extras to. the amount of $443.48. The Covell company was to furnish the material and do the work. The specifications, made a part of the contract, contained the following:
“Bond.
“The contractor is to' give a bond payable to the company for the full amount of his contract to assure the carrying out of all the work contracted for. Also insuring the Borden’s Condensed Milk Co. against any loss due to defective materials or workmanship for a period of one (1) year.
“All- work covered by these specifications- to be completed within four (4) months from date of signing contract.”
Defendant Maryland Casualty Company became surety on the Covell company’s bond. It was a contractor’s bond running to the Borden company. It contained among others the following clause:
"Fourth. That the obligee shall faithfully perform all the terms, covenants and conditions of such contract on the part of the obligee to be performed; and shall also retain that proportion, if any, which such contract specifies the obligee shall or may retain of the value of all work performed or materials furnished in the prosecution of such contract (not less, however, in any event, than ten per centum of such value) until the complete performance by the principal of all the terms, covenants and conditions of said contract on the principal’s part to be performed, and until the expiration of the time within which liens or notices of liens may be filed, and until the discharge of such liens, if any; and the obligee shall at all times observe and' conform to the laws relating to liens of the State wherein said contract is to be performed. That the plans and specifications mentioned in said contract are not in any respect defective, and are and at all times will be kept adequate for the complete performance of such contract, and that no change shall be made in such plans and specifications which shall increase the amount to be paid the principal more than ten per centum of the penalty of this instrument, without the written consent of the surety.”
The Covell company commenced the work of constructing the plant and continued such work until October 12th when a receiver was appointed for it and the job abandoned. The Borden company had at that time paid the Covell company $48,141.33, but $39,095.41 of which was used on the Borden job by the Covell company, and but $37,610.41 of which had gone to pay for material and labor. All the payments had been made by the Borden company without re quiring of the contractor the affidavit provided for by the mechanic’s lien law (3 Comp. Laws 1915, § 14799). There was no provision in the contract for payment upon architect’s certificates but the contract provided for payment on the first of each month of 90 per cent, of the labor performed and material delivered and erected. The Borden company completed the building. Numerous liens were filed. One of the lienors, plaintiff Sandusky Grain Company, filed its bill. Within a f éw days another lienor, Ionia Hardware Company, did likewise. The two suits were consolidated. The other lienors came into the case asserting their liens by proper pleadings, and defendant Borden Company brought the casualty company into the case. A decree in favor of numerous lienors, and in favor of the Borden’company and against the casualty company is here reviewed by the Borden company and the casualty company. The claims of the respective parties and the facts necessary to their understanding will be given only in so far as it becomes important to an understanding of the case and the grounds upon which it is disposed of.
Appeal of Maryland Casualty Co. The casualty company is a corporation engaged in the business of becoming surety for compensation. It is not a gratuitous surety and may not invoke the rule of strictissimi juris. People v. Bowen, 187 Mich. 257; People v. Traves, 188 Mich. 415; Ladies of Maccabees v. Surety Co., 196 Mich. 27. But it is not deprived of the right to contract or to the benefit of contracts made. Courts may not arbitrarily read provisions out of or into its contracts in order to make it liable, or make new contracts for it and the obligees. Its business is in the nature of insurance and courts in the construction of its contracts usually invoke rules applicable to contracts of insurance. The bond in the instant case was a contractor’s bond, a builder’s bond, the obligee was the owner; it was not a material-man’s or laborer’s bond. The Borden company is here seeking to recover upon it for its own benefit.
We shall consider but one claim of the casualty company which may be thus summarized: By the terms of the fourth clause of the bond above quoted the obligee Borden company was to observe and conform to the mechanic’s lien laws of the State; it did not do so; it did not require the contractor to furnish the affidavit provided for in section 14799, 3 Comp. Laws 1915; nor did the money paid by it all go to liquidate the claims of the materialmen and laborers, but upwards of $10,000 of the sum so paid was not so applied; that this was a voluntary payment, beyond what the contractor was entitled to receive or the owner obliged to pay and released the surety.
We have spent considerable time in independent research upon this question and in order that such labor shall not be entirely lost to the profession, we shall at the expense of prolixity consider a number of the cases which such research has revealed together with those to which our attention has been called by counsel. Our attention is challenged by counsel to numerous decisions arising under Act No. 187, Pub. Acts 1905 (3 Comp. Laws 1915, § 14827). A brief consideration of some of these cases will suffice. In People v. Finn, 162 Mich. 481, the “use” plaintiff was held to be a sub-contractor, the notice required under section 2 (§ 14828) had not been given, the sureties were gratuitous sureties, and liability was denied. In People v. Connell, 195 Mich. 77, the surety was a compensated one; a notice not in all regards complying with section 2 had been given but the surety was in no way injured by such failure and liability was sustained. People v. Traves, supra, was quite similar. The object of section 2 was regarded as conjectural, the surety was a compensated one, and was not harmed by the failure to give timely notice and liability was sustained.
In Doyle v. Faust, 187 Mich. 108, one angle of the question now before us was expressly reserved. It was there said:
“What the rule should be in a case, where it appeared that payments made to the contractors were in the nature of profits and retained by them, we need not decide. -It does not appear that all money paid was not used to liquidate demands for which, if unliquidated, the appellant would be liable.”
In Marquette Opera House Building Co. v. Wilson, 109 Mich. 223, it was said by this court, speaking through Mr. Justice Montgomery:
“Under this construction, the plaintiff had the right to protect itself by payment of any claims which were at the time liens, and upon which Wilson & Moore were in default, or to pay any claims which might mature into liens and upon which they were in default. But we think it was not within the contemplation of the parties that the plaintiff would be at liberty to make payments upon debts of Wilson & Moore for labor and material after such demands had ceased to be liens upon the property, and charge the sureties thereon.
“The parties are not agreed upon the question of fact as to whether the plaintiff failed to retain the 15 per cent, provided in the contract. If, in fact, the plaintiff failed to retain this much out of the estimates, and the payments made were voluntary, — that is, made upon claims which were not and could not become liens, — the obligation of the sureties would be reduced pro tanto.”
In Backus v. Archer, 109 Mich. 666, this court held (we quote the syllabus):
“A surety on á bond for the performance, of a building contract which provides that payments shall be made at specified times as the work progresses is released from all liability if the owner, without his consent, makes advances to the principal in excess of the amount due by the terms of the contract.”
The Michigan cases considered are not directly in point, nor are we persuaded that any Michigan case cited by either counsel is directly in point.
We are persuaded that the last two cases are by analogy helpful. They are in accord with a long line of authorities we have examined and a portion of which we shall now consider. These cases are to this effect that where by the terms of the contract the payments are to be made upon architect’s certificates, or where only a percentage of the amount earned is to be paid, payments made without such architect’s certificates or in excess of the percentage due are voluntary payments and may not be charged against the surety. Some of the cases) hold the surety is released entirely by such payments, others only pro tanto. Numerous cases will be found holding that such payments may not be charged against the surety unless the money so paid reached the materialman or laborer. These holdings are applied to both gratuitous and compensated sureties. The theory of the cases (and it is this theory which makes them analogous to the instant case) is that such provisions in the contract inure to the benefit of the surety as well as the owner. That where payments are made of a percentage only upon a certificate of the architect, a fund, is held in reserve for the benefit of both owner and surety, and that it also furnishes an incentive to the contractor to complete his contract and receive his pay that he would not have if he already had his profits in his pocket.
A leading English case is Calvert v. London Dock Co., 2 Keen, 638. In this case the contract provided for the retention of a percentage. This was not done; it was held that the surety was discharged, Lord Lang-dale saying:
“In this case, the company were to pay for three-fourths of the work done every two months; the re maining one-fourth was tp remain unpaid for till the whole was completed; and the effect of this stipulation was, at the same time, to urge Streather to perform the work, and to leave in the hands of the company a fund wherewith to complete the work, if he did not; and thus it materially tended to protect the sureties.
“What the company did, was perhaps calculated to make it easier for Streather to complete the work, if he acted with prudence and good faith; but it also took away that particular sort of pressure which by the contract, was intended to be applied to him. And the company, instead of keeping themselves in the situation of debtors, having in their hands one-fourth of the value of the work done, became creditors to a large amount, without any security; and under the circumstances, I think that their situation with respect to Streather was so far altered that the sureties must be considered to be discharged from their suretyship.”
The circuit court of appeals, third circuit, in Fidelity & Deposit Co. v. Agnew, 82 C. C. A. 103, 152 Fed. 955, thus stated the rule:
“The provision in a building or working contract that' the contractor or builder shall be paid as the work progresses according to the amount of materials furnished or work performed, upon estimates to be made by the supervising architect, or engineer, whether a percentage is to be retained therefrom, until the whole is done or not, redounds to the benefit of a surety or guarantor of the party who is to fulfill the contract; and, upon payment being made in disregard of it, there is such a departure from the contract upon which the undertaking of the surety or guarantor is based that he is released. The purpose of such a stipulation is to guard against the consequences of a default, in ease the principal contract proves a losing one, or the contracting party for any reason fails to comply, the percentage retained, where that is provided for, affording additional security, as well as holding out an incentive; and.when it is not observed, and advance or overpayments are made, it is so obviously to the prejudice of the surety that it operates as a discharge as matter of law.”
In National Surety Co. v. Long, 79 Ark. 528 (96 S. W. 745), the court said:
“This clearly shows that Long either wilfully, or from a misconception of the meaning of his contract, or out of generosity to Humphreys, paid much more than he was entitled to pay under his contract and bond. We think his conduct in this regard released the surety company, because it affected the liability of the surety, and the clause in reference to this was not intended solely for the protection of the owner. * * *
“We have not overlooked the fact that the appellant in this case is not an accommodation surety, but is a paid surety, and we recognize the difference between them (Remington v. Fidelity & Deposit Co., 27 Wash. 429 [67 Pac. 989]; Walker v. Holtzclaw, 57 S. C. 459); but we hold that a paid surety is only bound by the stipulations of his contract of suretyship.”
The supreme court of Alabama in First National Bank v. Fidelity & Deposit Co., 145 Ala. 335 (40 South. 415, 5 L. R. A. [N. S.] 418, 8 Ann. Cas. 241), thus held:
“We hold that under the contract and bond in this case, which constitute one transaction, if the plaintiff did not pay for the work and the material in the manner provided by the contract, but instead thereof, an arrangement made either at the time the contract was made, or afterwards, with the contractor, without the consent of the surety, permitted the contractor to overdraw over his account, so that considerable amounts of money were paid to him before any certificates were issued by the architect, and the material was paid for, without any estimate and before delivery, and without any regard to the retention of the percentage required, trusting to the certificates and estimates to be credited on said general account, — then this was such a departure from the terms of the original contract as to release the obligation of the surety.”
Mr. Justice Bergen, speaking for the supreme court of New Jersey in Jersey City Water Supply Co. v. Construction Co., 76 N. J. Law, 419 (69 Atl. 1088), said:
“We are of opinion that under the bond and contract the surety was entitled to have twenty per cent, of each monthly estimate held until the completion of the contract, and that being entitled to such indemnity, where it is admitted, as in this case, that the twenty per cent., if retained and held in hand until the contractor abandoned the work, would have been sufficient to complete it, the payment of the twenty per cent, in advance releases the surety from liability.”
The supreme court of North Dakota, speaking through Justice Bruce in Long v. American Surety Co., 23 N. D. 492 (137 N. W. 41), and considering the case on rehearing, said:
“If plaintiff’s evidence as to the cost of completion is to be relied upon, there would have been no profits, but rather a loss, so that there was every incentive for Gentry to abandon the work. If, on the other hand, the balance required by the contract and the bond had been retained by Long, he might have hesitated in abandoning the job for fear of losing the amounts so reserved. That such payments in violation of the conditions of a bond will; release the surety is abundantly sustained by the authorities (citing a large number of authorities). * * *
“We are not unmindful of the fact that a paid surety or bonding company is treated rather as an insurer than as a surety. 32 Cyc. p. 303; Bank of Tarboro v. Fidelity & Deposit Co., 126 N. C. 320 (35 S. E. 588); 128 N. C. 366 (38 S. E. 908, 83 Am. St. Rep., 682). This fact, however, does not make it less obligatory on the part of the beneficiary to perform his part of the contract.”
In Kunz v. Boll, 140 Wis. 69 (121 N. W. 601), it was said by that court:
“It was made to appear conclusively, however, and indeed declared by the findings, that the building was not completed until September 20th, and that as early as June 9th. there had been paid to the contractor the sum of $15,100, while by the express terms of the contract only $13,000 was to be paid to him prior to the final completion of the contract. The efficacy of substantial advance payments upon contracts to discharge sureties is too well settled by the authorities in this State to warrant discussion. The prejudicial effect thereof to the surety has been found both in the removal of the incentive to the contractor to diligently press his work and from the diminution of the fund which the contract contemplates to remain in the owner’s hands and which may serve as a means of protecting the sureties from liability.”
We quote from the syllabus of the case of Bessemer Coke Co. v. Gleason, 223 Pa. 84 (72 Atl. 257):
“An essential part of a building contract required that fifteen per cent, of the amount due thereon should be.retained until final settlement. Where the obligee, in disregard of this requirement, overpaid the principal, he cannot recover the amount of such overpayment from the surety upon the bond.”
We likewise quote the syllabus in Picard v. Shantz, 70 Miss. 381 (12 South. 544):
“A stipulation in a building contract that payments shall be in fixed installments, the last when the house is completed, is a' security for the execution of the contract, which inures to' a surety of the contractor, and, to the extent that the surety is deprived thereof by the owner’s act in anticipating payments, he is discharged.”
In Growall v. Pacific Surety Co., 21 Cal. App. 185 (131 Pac. 73), it was said:
“The surety cannot be charged with any voluntary payment that plaintiff may have made in excess of what he was legally liable for.”
In Leiendecker v. Indemnity Co., 52 Wash. 609 (101 Pac. 219), the court held that the surety was not released as matter of law by the payment of the contract price in advance where the contract did not name a date of payment, but held that such payment was, in view of the provisions of the bond, a fraud upon the surety and released it, the court saying:
“There is a contractual relation existing by reason of this bond between the indemnity company and the appellant. This provision was accepted by the appellant when he accepted the bond as a specification of his duties in the premises; and- it seems to us that it was a fraud upon the indemnity company to neglect to notify it that a payment had been made which was not disclosed in the contract upon which the bond was given, and the making of which rendered unavailing the provision in the bond just quoted. Having accepted the bond with a provision of this kind, we think the appellant is bound by such provision.”
In Morgan v. Salmon, 18 N. Mex. 72 (135 Pac. 553, L. R. A. 1915B, 407), it was said:
“The surety had the right to specify the conditions under which it would be held liable. The obligee was not compelled to accept these conditions; but, having done so, he is bound by them. The provisions of the bond that 15 per cent, of the amount due for labor performed and material furnished be retained was obviously for the benefit of the surety, and without it therein the bond, no doubt, would never have been written. Had it been complied with by the obligee, not only would there have been a sum remaining in his hands for the protection of the surety, but there would also have been, an additional incentive for the contractor to carry out the terms of his contract and go on and complete the building. By payment in full, the temptation for dishonesty was increased, and the hope of reward for further labor decreased. It made a different obligation that subjected the surety to risks for which it had not contracted. We can but conclude, therefore, that the failure of the obligee to retain 15 per cent, of the value of the labor performed and material furnished in the construction of the building was a material variation of the bond.
“Having reached this conclusion, it logically follows that the surety is released.”
The question was before the supreme court of Kansas in the recent case of Young Men’s Christian Ass’n v. Ritter, 90 Kan. 332 (133 Pac. 894, L. R. A. 1915C, 170), and was fully considered. It was there said:
“No reason is suggested why a surety company may not by its contract require that the usual percentage of the building cost shall be retained until the building is completed and until it has notice of the default of the contractor and consents to the final payment. We are impressed with the reason and justice of the rule that a surety company, although engaged in the business for profit, should be released from liability to the extent of any payments made in excess of the amount or in advance of the time expressly provided in the bond itself. To hold otherwise would require the courts to make for the parties a new contract and one not contemplated at the time the contract sued upon was entered into.”
See, also, St. Mary’s College v. Meagher, 11 Ky. Law Rep. 112 (11 S. W. 608); Bragg v. Shain, 49 Cal. 131; County of Glenn v. Jones, 146 Cal. 518 (80 Pac. 695, 2 Ann. Cas. 764); Black Masonry & Contracting Co. v. Surety Co., 61 Wash. 471 (112 Pac. 517); Lawhon v. Toors, 73 Ark. 473 (84 S. W. 636); O’Neill v. Title Guaranty & Trust Co., 113 C. C. A. 211, 191 Fed. 570; Blackburn v. Morel, 13 Ga. App. 516 (79 S. E. 492); St. John’s College v. Indemnity Co., 201 N. Y. 335 (94 N. E. 994); Warre v. Calvert, 7 Adol. & El. 143. Valuable notes will be found in 5 L. R. A. (N. S.) 418, and L. R. A. 1915B, 407.
If the provisions in, the contracts under consideration in these cases inured to the benefit of the surety, and payments not in accordance with the terms of the contract are to be treated as voluntary payments, changing the terms of the contract, and are not chargeable against the surety, and these cases so held, then by a parity of reason we are persuaded it necessarily follows that where by the provisions of the bond the obligee is to observe the mechanic’s lien law of the State and he does not do so, but pays to the contractor without complying with its provisions and the terms of the contract then such payments must also be regarded as voluntary, changing the terms of the contract and not chargeable against the surety. In Smalley v. Gearing, 121 Mich. 190, and in Stevens v. Garland, 198 Mich. 24, we called attention to the fact that the statute provides for two methods of payment which m,ay be made with safety: first, requiring the sworn statement of the contractor; second, when the money is distributed according to the statute among those who might acquire liens. The Borden company did neither, but paid upwards of $10,000 to the contractor for itself which neither its contract nor the mechanic’s lien laws of the State obligated it to pay. This was a voluntary payment and may not be charged against the surety.
The instant case is so far as we have been able to ascertain practically a case of first impression. The point seems to have been made in Hardie v. Bateson, 252 Pa. 317 (97 Atl. 464), but was not decided, the court remarking:
“Our attention has not been directed to any right provided by the laws of this State relating to liens, which the appellee neglected to observe and enforce to the prejudice of the appellant.”
The syllabus in Shreveport Mut. Bldg. Ass’n v. Whittington, 141 La. 42 (74 South. 591), might be taken as favorable to the contention of the Borden company, but an examination of the case shows that the bond was a materialman’s and laborer’s bond and the case is not in point. The case nearest in point which we have been able to find, and it is quite in point, is Guilford Lumber Manfg. Co. v. Holladay, 178 N. C. 417 (100 S. E. 597). In this case the Greensboro College for Women had paid the contractor without complying with the mechanic’s lien law of the State, the contractor had not paid for all the material and labor, and it was sought to hold the surety for the amount of the liens. This the court declined to do, saying:
“In this case it was the plain duty of the college to withhold the sum necessary to pay these materialmen, as the law directed that the college retain the money and pay it to the person to whom'it was due. When it paid the money to Holladay, instead of retaining it when it had full notice of the existence of claims of the materialmen, it was a direct violation of its duty and it would be inequitable to allow the college to take advantage of its own wrong and compel the surety to make good the default. He had a right to assume that the college would obey the statute, retain the money, and apply it to the claims of the materialmen. When the college paid the money belonging to the material-men over to Holladay, trusting him to settle with the materialmen, it made Holladay its agent for that purpose, and whatever loss is sustained, it must bear.”
As the amount of the voluntary payments were far in excess of the amount of the decree against the casualty company, it follows that such decree must be reversed.
Appeal of Borden’s Condensed Milk Co. The Borden company appeals from numerous features of the decree. We shall first consider those having reference to the casualty company.
(a) The defendant Covell Construction Company did not complete the building before the receiver was appointed or within the time fixed by the contract. The Borden company finished the work and claims to have suffered damages by the delay. In its answer it claimed $10,000 damages; its controller claimed that such damages amounted to $50,000. The trial judge disallowed this claim, and we think correctly so. It was manifestly based on a claim for prospective profits. These depended, as the evidence disclosed, upon the number of farmers who could be induced to sell milk to the company, the number of cows each might have, whether they were Jerseys, Holsteins, or Shorthorns, and other like contingencies. These prospective profits were too conjectural to justify a decree for their supposed loss. Truman v. Threshing Machine Co., 169 Mich. 153.
( 5) It would seem that the Borden company paid the State Bank of Sandusky $4,250 on an order signed by the Covell Construction Company. The testimony does not show whether it had been accepted by the Borden company or not. As we understand the record this was in addition to the payments considered when discussing the appeal of the casualty company; this, however, is unimportant. Some information is given with reference to this claim in counsel’s brief which, does not appear in the record. So far as the record, discloses, it was a voluntary payment or an advance payment. It falls within the reasons considered under-the head of appeal of Maryland Casualty Company. In addition to the cases there cited and applicable to this, particular claim, see the recent case of Utter v. Leach, ante, 31. The claim must be disallowed.
(c) One Charles V. Othoudt did some work on the building. He filed no claim of lien. Some of his work was done before and some after the Borden company took over the completion of the building. How much was before and how much after this date, the Borden company did not know at the time of the trial and was therefore unable to make its proof. The Borden company claims to be entitled to an allowance for such sums as it paid to Othoudt in completing the building after it took over the work, and counsel for the Borden company now makes a statement in the brief of what it is claimed, that sum is, and makes the claim that all counsel admitted its correctness before the decree was. finally settled. But we must dispose of the case on the record before us. Upon the record as mlade we cannot allow this item. We would not, of course, decline to give effect to a stipulation of all counsel that the item should be allowed, but no such stipulation is now before us.
This leaves the objections made to numerous liens to be considered. The issue was made up and the case tried prior to the taking effect of the amendment to section 3 of Circuit Court Rule No. 26 so that we need not concern ourselves with the effect of that amendment.
(d) Saginaw Brick Company. The Borden company seeks to invoke the statute of limitations to defeat this claim. It does so by a motion to dismiss, but no such) defense is set up in its answer. Counsel for the brick company make the point that the defense of the statute of limitations is not available on motion to dismiss. In this counsel is correct. In the recent case of Vyse v. Richards, 208 Mich. 383, we pointed out that the motion to dismiss under the judicature act (3 Comp. Laws 1915, § 12456) performs the function of a demurrer, pleas in abatement and plea to the jurisdiction, but that it does not perform the function of a plea in bar, and it was there said:
“Under the repeated decisions of this court the statute of limitations must be pleaded and the defense cannot be raised by demurrer. Whitworth v. Pelton, 81 Mich. 98; Shank v. Woodworth, 111 Mich. 642; Renackowsky v. Board of Water Com’rs, 122 Mich. 613; First National Bank v. Steel, 136 Mich. 588; Township of Forest v. American Bonding Co., 180 Mich. 90. The defense is a bar to the action and should be so pleaded in order to be available.”
Cases will be found where this court has under the former practice disposed of this question on demurrer and under the present practice on motion to dismiss, but they are cases in which the point was not made. Here the point is made and insisted upon. It must be sustained.
The objection is also made by the Borden company that the material was furnished on three separate contracts and that the lien which was filed after the last furnishing was not within 60 days after the furnishing of the material under the earlier contracts. But we do not think the proofs sustain this contention, and as the defense of separate contracts is made to a number of the liens we shall dispose of it now. An examination of this record and the numerous briefs filed in the case leads us to the conclusion that counsel for the Borden company in making this claim overlook the difference between a “requisition” for material and the making of a new contract. On the erection of a building, material is needed from time to time as the building progresses. Rarely is all the material assembled before any work begins. Requisitions may be issued from time to time for material as it may be needed. But each requisition does not make a new contract requiring the filing of a separate lien, nor does the payment of bills as they accrue have that effect. In Union Trust Co. v. Casserly, 127 Mich. 183, where a somewhat similar claim was made, this court, speaking through Chief Justice Montgomery, said:
“It is contended that the testimony shows that the contract was for the delivery of a specific amount of material, and that the delivery of other items was under separate contracts, and that therefore a lien should have been filed within 60 days after the furnishing of each item. 3 Comp. Laws, § 10714. We think this too narrow a construction of the statute. The correct rule is stated in Phil. Mech. Liens, § 229, as follows:
“ ‘Where work or material is done or furnished, all going to the same general purpose, as the building of a house or any of its parts, though such work be done or ordered at different times, yet if the several parts, form an entire whole, or are so connected together as to show that the parties had it in contemplation that the whole should form but one, and not distinct, matters of settlement, the whole account must be treated as a unit, or as being but a single contract.’ ”
The objections made to this lien are overruled.
(e) Detroit Lead Pipe Works. What has just been said with reference to the defense of the statute of limitations need not be here repeated; the defense is not properly raised. The claim of lien was filed October 24, 1917. It is insisted that this was not within the 60 days from the last furnishing; but Mr. Bale, credit manager of this company, testifies that the first furnishing of material was on August 15th and the last September 7th. Three invoices from this company appear in the record, the last one being dated August 28th. Even if this was the date of the last furnishing of material the lien was filed within 60 days thereafter.
(f) The Briggs Company. This company furnished asbestos shingles and built-up asphalt roofing and brick. The testimony of Mr. Ewer, the vice-president of the company, and that of Mr. Covell, called under the statute for cross-examination, are in harmony. Mr. Ewer talked with Mr. Covell and made him prices before the Covell Construction Company bid on the job. After its bid was accepted they arranged for furnishing material. The material was furnished on requisitions. What we have already said on the subject of separate contracts is here applicable. The further claim is made that because Mr. Ewer referred Mr. Covell to Mr. Anderson, who had charge of the brick department of the company, to fix the price on brick, that this made a separate contract for the brick. We do not so construe the testimony which fairly shows it was all one transaction.
There was a conflict in the testimony as to when the claim of lien was filed, some tending to show that it was filed after the service on the company. Defendant Borden company in its answer admitted that it was filed the day the Briggs company claimed it was filed. The trial judge, who heard and saw the witnesses, sustained the lien. We have no disposition to differ from his conclusion.
(g) Geneva Parrish and Peter Orr. What has been said disposes of the objections to this claim. They are overruled.
(h) Ionia Hardware Company. The Covell Construction Company was located at Ionia; the hardware company not only furnished material for the Borden job but also furnished it material on general account, the construction company having contracts at other places. A payment was made by the construction company to the hardware company of $800 which was credited on its general account in the absence of any directions as to where to apply it. The Borden company asks that it be now applied to here reduce the claim of the hardware company. There is no testimony in the case that this $300 came from the Borden job. In the absence of such proof we would not be justified in now making a change in its application from that made by the parties. At first there was some confusion in the proof as to when the claim of lien was served on the Borden company but before the proof was closed this was cleared up, and it appeared without dispute that it was served the same day it was filed. Other objections are disposed of by what has heretofore been said.
(i) Sandusky Grain Company. The objections to this claim are disposed of by what has already been said.
(j) Sebewaing Sandstone Brick Co. It is a sufficient answer to the objections now urged against this claim that by the answer of the defendant Borden company sufficient of the material allegations of the cross-bill were admitted to justify the decree made.
(k) State Bank of Sandusky. So-called pay cheeks were issued to the laborers on the Borden building by the Coveil company. They were not drawn on the bank but were made payable there. They were not in the form of a! check but partook more of the form of a certificate stating the hours of labor performed and the amount due. Several laborers took them to the State Bank of Sandusky where they were payable. The bank took the checks paying the laborers therefor their face and was allowed a lien for the amount of them. We think this was proper. The transaction amounted to an assignment of these pay checks, of these claims for labor, to the bank. While the courts of a number of States hold that the right to a labor lien is a personal one and not assignable, our legislature has expressly made such claims assignable with the right to enforce the lien. 3 Comp. Laws 1915, § 14820. That no particular form of assignment is necessary and that the assignment of a labor claim carries with it the security of the lien with and right in the assignee to enforce it by appropriate proceedings is demonstrated by numerous decisions, among them see Kinney v. Duluth Ore Co., 58 Minn. 455 (60 N. W. 23, 49 Am. St. Rep. 528); Skyrme v. Mining Co., 8 Nev. 219; McDonald v. Kelly, 14 R. I. 335; Hoagland v. Van Etten, 31 Neb. 292 (47 N. W. 920); Mason v. Germaine, 1 Mont. 263; Brown v. School District, 48 Kan. 709 (29 Pac. 1069).
Costs. The Casualty company will recover its costs against the Borden company. Such lienors as have filed briefs in this court will also recover costs of both courts against the Borden company; lienors who have not filed briefs here will only be entitled to costs in the circuit court.
Upon the settlement of the decree in this court in accordance with this opinion the case will be remanded to the circuit court for the county of Sanilac, in chancery, for the enforcement of the decree.
Steere, C. J., and Moore, Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Sharpe, J.
Plaintiff, a man 68 years of age, recovered a verdict, on which judgment was entered, for $1,950 for damages sustained by him by being struck by defendant’s automobile at or near the intersection of Woodward and Jefferson avenues in the city of Detroit. It is plaintiff’s claim that, going west, he approached this corner on foot from the north side of Jefferson avenue; that as he reached the corner the traffic was moving north' and south and he went with it; that after he had passed the southerly street railroad track the east and west traffic was released; that he proceeded onward and, when a few feet from the curb, was struck by defendant’s machine, which had turned suddenly and without warning around the southeast comer of the intersection at a speed of 12 miles per hour; and that the injuries sustained caused him much pain and suffering and were severe and-permanent in their nature. The defendant insists that the collision was caused by plaintiff’s negligence, and that he was without fault. There is no claim made that the verdict is excessive. Defendant moved for a new trial. This was denied, and he brings error. The assignments relied on will be considered in the order discussed by defendant’s counsel in their brief.
The first 12 are based on the admission and rejection of testimony. Many, of them' relate to the nature of plaintiff’s injuries. There is no claim made that the verdict is excessive. A full cross-examination of plaintiff was permitted. We find no reversible error in any of the court’s rulings.
A witness, in answer to a question put by defendant’s. counsel as to the speed of the car at the time of the collision, said, “All I can say, it was going very slow.” This was stricken out. As the witness afterwards testified that the car was going at 8 or 9 miles per hour as it rounded the comer, this need not further be considered.
In the transcript of testimony as furnished to defendant’s attorneys, it appeared that the court instructed the jury that a violation of any of the provisions of the ordinance regulating speed “is in and of itself negligence.” When the attention of plaintiff’s attorney was called to this, he had the stenographer who reported the case look up his original notes and discovered that the word “not” between “is” and “in” had been inadvertently omitted. The trial judge in his certificate states that he used the word “not” in the instruction given. We find no error in the action of the court in making the correction.
While error is alleged on certain sentences in the charge of the court, we have read it with care and find that it fairly presented to the jury the claims of the parties and the law applicable thereto.
It is strongly urged that a new trial should have been granted for the reason that plaintiff’s contributory negligence was established by the proofs. There was sharp conflict in the testimony as to the conduct of the plaintiff and the effort made by him to avoid the collision. It will serve no useful purpose to review it. A question for the jury was presented under a number of the recent decisions of this court. Schock v. Cooling, 175 Mich. 313; Levyn v. Koppin, 183 Mich. 232; Tuttle v. Briscoe Manfg. Co., 190 Mich. 22; Amley v. Milling Co., 195 Mich. 189; Patterson v. Wagner, 204 Mich. 593; Benjamin v. McGraw, 208 Mich. 75; Darish v. Scott, 212 Mich. 139.
The errors not discussed have been considered and in our opinion are without merit.
The judgment is affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred. | [
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Fellows, J.
(after stating the facts). Plaintiff by its bill claims that the deeds to Lefton were without consideration and fraudulent and were made to place the title out of Meister and in one in the service for the purpose of vexing and annoying it and that it had no actual notice of their existence although conceding constructive notice from their record. Defendant Meister insists that they were given to secure money advanced and were in all regards free from fraud. As the debt secured by them has been paid, if one existed, and Lefton no longer has or claims to have an interest in the lots and is not in any way affected by these proceedings, we have no occasion to consider any of these claims. The matters adjudicated by the court- below and now before us on appeal concern only the plaintiff and defendant Meister. While several questions are discussed we think the controlling ones are within a very small compass.
There is no claim that there is any irregularity in the proceedings before the circuit court commissioner or that he was 'without jurisdiction-. There is no claim that defendant had made any payments he was not given credit for. There is no- claim that he was not in default or that he did not receive the notice of forfeiture. There is no claim that he was lulled into insecurity by any act or promise of plaintiff, or that he failed to make any defense before the commissioner because of any promise or act of the plaintiff. Indeed, he appeared personally and by counsel in that proceeding. In short, this record will be searched in vain for facts which establish grounds for equitable relief from-the judgment rendered by the commissioner.
What defendant’s counsel do urge upon the court is that plaintiff’s notice of forfeiture was ineffectual because at the time it was given it had not paid the specific tax required by Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4268 et seq.), and particular stress is laid upon section 8 of the act (§ 4275). Their further contentions are that equity does not favor forfeitures, will not decree them, and will relieve from them. Much space is taken in the briefs of both counsel in the consideration of the question of the payment of the specific tax provided for in the act above cited, it being the claim of defendant’s counsel that under the section noted the contract may not be “enforced” without its payment, and that the notice of forfeiture was an attempt to “enforce” it, or at least was one of the steps in its enforcement and could not be had without the payment of the tax. This presents an interesting question and the briefs demonstrate that both counsel have devoted much time and ability to its consideration. When properly before the court it will receive the consideration its importance requires. But this is not a proceeding to enforce the contract. This is a proceeding to enforce and give effect to the judgment rendered by the circuit court commissioner. Whether this question was urged before the commissioner this record does not reveal. That it was available to defendant then, if at all, cannot be questioned. Here it is urged in a collateral attack upon the judgment there rendered. If there urged and overruled manifestly defendant’s remedy was by an appeal, and it must be equally manifest that defendant could not there withhold a defense to that proceeding for the purpose of making it available in equity as a basis of collateral attack! It is not the province of the court of equity to examine the evidence adduced upon a trial at law and determine whether it supports the judgment. The circuit court commissioner had jurisdiction. If the judgment rendered by him was erroneous defendant’s remedy was by appeal.
This court has been quite liberal in relieving parties from forfeitures. See Lozon v. McKay, 203 Mich. 364; Hubbell v. Ohler, 213 Mich. 664. But plaintiff is not here asking that a forfeiture be decreed. What it is here asking is that effect be given a judgment in its favor against the defendant in a case where the defendant might have raised the question of the propriety of the forfeiture, and where even after judgment, and for 30 days thereafter, he had the right to redeem and be relieved from the forfeiture. Plaintiff is here asking the court to say that what has been done terminated the contract and defendant’s rights under it, and that any claims of defendant to the lots are but a cloud upon its title. The language of this court in Pendill v. Union Mining Co., 64 Mich. 172, is quite applicable. It was there said:
“Counsel for defendant further insist that the object of the bill is to declare a forfeiture of an estate for non-performance of a condition subsequent, against the rule that, equity will never enforce a penalty or forfeiture. We do not think this is the proper view to be taken of the bill. The bill treats the lease as a void incumbrance, under which the defendant company, by its claims thereunder, clouds the complainant’s title. The court is not asked to declare the forfeiture, but to ascertain whether or not a completed forfeiture exists, and, if so, to remove the cloud. The bill does not ask the court to do the thing, but to ascertain whether it has been done, and, if so, to declare its effect upon the title to complainants’ property.”
In the case of Lambton Loan & Investment Co. v. Adams, 132 Mich. 350, this court pointed out that the vendor in a forfeited land contract had three remedies: (1) a suit in equity to foreclose the contract; (2) an action of ejectment; (3) proceedings under the statute. We also pointed out that if he took the statutory remedy he took it subject to the conditions imposed by the statute which at that time permitted payment of the amount found due within five days after the rendition of the judgment (3 Comp. Laws 1897, § 11177). And in Smith v. Nelson, 165 Mich. 438, we held that this statutory right to redeem was at an end five days after judgment in the circuit court on appeal and was not prolonged by an appeal to this court.
Section 11177, 3 Comp. Laws 1897, was carried into the judicature act without change (3 Comp. Laws 1915, § 13253). But the legislature of 1917 saw fit to extend the time for redemption where the proceedings were upon an executory land contract and amended the section so that it now reads so far as important here (Act No. 243, Pub. Acts 1917):
“No writ of restitution shall be issued under the provisions of this chapter, until the expiration of five days, or in the case of a proceeding upon any executory contract for the purchase of real estate until the expiration of thirty days after the entry of judgment of restitution; and in case of an appeal within that time, no writ of restitution shall issue until such appeal be determined in the circuit court; * * * Any writ of restitution and return of service thereof may be recorded in the office of register of deeds for the county in which said lands or tenements are situated and when so recorded shall be notice to all persons of the termination of all rights of defendant in or to such lands or tenements.”
A consideration of these statutory provisions shows the legislative intent to protect defaulting vendees and to give them a final opportunity to pay and be reinstated in their contract rights after a hearing as to amount due and a fixing of that amount. Under our holdings the vendor who avails himself of this statutory proceeding takes it subject to this provision. Defendant now asks us to add a further condition, i. e.y that such judgment and the facts and law upon which it is based are all subject to review by a court of equity. Counsel for defendant rely on what is said in Davis on Michigan Practice before Circuit Court Commissioners, p. 318, quoted by this court in Gregor v. Olde, 209 Mich. 43, to support their contention. What the author then evidently had in mind and what this court clearly had in mind as appears from the language of the opinion immediately following the quotation was that in a proper case of equitable cognizance such as the one then before us equity would assume jurisdiction. The case then before' us involved a judgment which we held the commissioner was without jurisdiction to render and which was void. The case does not sustain the defendant’s contention.
To restate briefly: Defendant for over six months was in default in his payments; regular proceedings were had under the statute before the circuit court commissioner and judgment of restitution was rendered by him and the amount then due was fixed; the time given defendant under the statute after judgment in which to redeem, expired without payment of the amount so fixed; there is no accident, fraud, or mistake alleged. Under these circumstances the judgment rendered in a case where the commissioner had jurisdiction is a finality, and neither it nor the evidence upon which it is based may be reviewed by a court of equity. Defendant was not entitled to a decree for specific performance.
But it is insisted by defendant’s counsel; that if the defendant is not entitled to specific performance he is still entitled to an accounting for the money paid before the contracts were forfeited. The contracts each contained the following provision:
_ “It is further agreed, by the parties hereto, that time shall be of the essence of this contract and that if the said party of the second part shall fail to make any of the payments; or perform any of the conditions above set forth, in the manner and at the time above limited therefor, the parties of the first part shall, immediately after such failure, have the right to declare this contract void, and to retain whatever may have been paid hereon, and the premises, together with the buildings and improvements thereon and may consider and treat the party of the second part as their tenant holding over without permission, and may take immediate possession of the premises and remove the party of the second part therefrom.”
A complete answer to this contention will be found in the recent case of Niman v. Story & Clark Piano Co., 213 Mich. 397, where a similar contention was made. Mr. Justice Wiest, who wrote for the court, there fully considered such contention, reviewed the authorities in this and other States and concluded:
“We cannot raise a promise on defendant’s part to refund the payments in the face of plaintiff’s agree ment that the same should not be refunded. The conditional sale agreement governs.” * * *
Neither of the defendants now have any interest in the premises in question. Defendant Lefton has been paid the debt the deed to him was given to secure; defendant Meister’s interest was terminated by the proceedings before the commissioner; and the failure to redeem within the statutory time. Plaintiff is entitled to a decree quieting its title. Gillespie v. Lee, 212 Mich. 213.
The decree of the court below will be reversed and one here entered in conformity with the prayer of the bill. Plaintiff will recover costs of both courts.
Steere, C. J., and Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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Weaver, J.
Plaintiff Peggy Glave appeals as of right from the order of the Kalamazoo Circuit Court granting summary disposition pursuant to MCR 2.116(C)(8) in favor of all defendants. We affirm._
Plaintiff sought damages for a medical condition she developed subsequent to efforts by the City of Battle Creek, the Michigan Terminix Company, and the Michigan Terminix Pest Control Company, beginning in 1974, to spray certain city buildings so that the pigeons inhabiting them would depart. Plaintiff alleged that this spraying caused the pigeons to flock to her neighborhood and home, thereby directly and proximately causing her to contract histoplasmosis, a fungal infection.
Plaintiff’s complaint alleged the intentional tort of nuisance. Plaintiff also alleged that defendants had negligently chased the birds into residential neighborhoods when they should have killed them, trapped them, or left them where they were and that defendants negligently failed to consider the health hazard to area residents, failed to prevent the pigeons from relocating in residential neighborhoods, and failed to remove the pigeons once they were there.
When defendants Michigan Terminix Company and Michigan Terminix Pest Control Company requested summary disposition for failure to state a claim upon which relief could be granted, MCR 2.116(C)(8), plaintiff failed to answer; nor did plaintiff answer when defendant City of Battle Creek filed a similar motion. The circuit court granted summary disposition in favor of all defendants, holding that, because pigeons are ferae naturae (wild things) and the defendants never had control of them, plaintiff had no cause of action. Plaintiff appeals as of right.
On appeal, plaintiff argues that the court erred (1) by determining the pigeons to be ferae naturae and (2) by adjudicating the facts when it granted summary disposition. As to plaintiff’s first argument, there appear to be no Michigan cases deal ing with the question of whether pigeons are ferae naturae. However, "wild game” belongs to the state and is subject to the state’s power of regulation and control, an individual acquiring in such game only the qualified property interest which the state permits. Aikens v Dep’t of Conservation, 387 Mich 495, 502; 198 NW2d 304 (1972). By asserting dominion over a wild animal and keeping it, an individual may be held liable for personal injuries caused by the animal’s conduct. Marquet v LaDuke, 96 Mich 596, 599; 55 NW 1006 (1893). This is in consonance with Koop v United States, 296 F2d 53 (CA 8, 1961), which declined to concede any property interest in wild animals or birds until human control is exercised by taming or confinement. Even if assumed, control is lost upon relinquishment. Id., pp 59-60.
Here, no one owned the pigeons, and defendants never tamed, confined or otherwise controlled the pigeons. On the contrary, rather than trying to tame or confine them, defendants encouraged their departure. Hence, even assuming that defendants once had control (which was not alleged), such control was lost when defendants sent the birds away. Therefore, the trial court did not err by determining as a matter of law that the pigeons were wild. See Seaboard Air Line R Co v Richmond-Petersburg Turnpike Authority, 202 Va 1029; 121 SE2d 499 (1961).
This case is unlike Andrews v Andrews, 242 NC 382; 88 SE2d 88 (1955), upon which plaintiff relies. In Andrews, the defendant deliberately attracted large numbers of wild geese to a large artificial pond constructed within four hundred feet of plaintiffs’ lands, and over a period of years the pond became a base for the ever-widening and increasingly expensive predations of the geese on plaintiffs’ crops. Here, defendants merely encouraged the departure of wild pigeons from city buildings. Defendants never asserted dominion over the birds or reduced them to possession; hence the birds remained free, and the defendants were not responsible for their migrations. Sickman v United States, 184 F2d 616, 618 (CA 7, 1950). To hold otherwise would put the imagination to ludicrous shifts.
As for appellant’s second argument, it is true that the trial court must limit its consideration of motions for summary disposition to the pleadings alone. Allinger v Kell, 102 Mich App 798, 806-807; 302 NW2d 576 (1981), modified on other grounds 411 Mich 1053 (1981). Therefore, the trial court erred by improperly basing its decision, in part, on a determination that plaintiff never showed defendants to have control over the pigeons. However, because the court was correct in determining as a matter of law that pigeons are wild things, defendants could not be liable without exercising dominion, control or possession over the birds. Since plaintiff did not allege such dominion, control or possession, she failed to state a claim upon which relief could be granted, and the error was harmless. Gilbert v Grand Trunk W R Co, 95 Mich App 308, 313; 290 NW2d 426 (1980), lv den sub nom Gilbert v Criswell, 410 Mich 854 (1980).
Affirmed.
As for domestic animals, an owner or custodian possessing knowledge of their vicious propensities is liable for injuries caused by their escape. Papke v Tribbey, 68 Mich App 130, 136; 242 NW2d 38 (1976), lv den 399 Mich 834 (1977). | [
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Per Curiam.
Plaintiff appeals as of right from an August 30, 1985, order of the Muskegon Circuit Court which granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7). The court determined that plaintiff’s claim for "assault pay” benefits pursuant to MCL 330.1113; MSA 14.800(113) was barred by a prior arbitration award._
Plaintiff was an employee of the Muskegon Regional Center for Developmental Disabilities for eleven years prior to January 10, 1981. On that date, plaintiff was injured on the job when she was kicked in the head by a resident, allegedly sustaining soft tissue, whiplash-type injuries to her back, neck and shoulders. As a result of her injuries, plaintiff did not work from January 10, 1981, to February 2, 1981. During this period of absence from work, plaintiff received assault pay benefits pursuant to her collective bargaining agreement and MCL 330.1113; MSA 14.800(113). On October 13, 1983, plaintiff again left work, allegedly because of the injuries sustained on January 10, 1981. She did not return to work until Junte 3, 1984. Assault pay benefits were denied for this second period of absence from work.
Plaintiff filed a union grievance on April 11, 1984, which was denied in an arbitration award for lack of a causal link between plaintiff’s medical condition and the assault which had occurred on January 10, 1981. This award was based on conflicting medical evidence presented by both the union and the employer at the arbitration hearing on February 22, 1985. The arbitrator issued his opinion denying plaintiff’s employment grievance on May 20, 1985.
Plaintiff filed her complaint in the instant action on July 2, 1985, alleging both breach of the collective bargaining agreement and a statutory cause of action based on MCL 330.1113; MSA 14.800(113). She received workers’ compensation benefits during her second absence from work. Defendant’s subsequent motion for summary disposition was based on three grounds: (1) the bar of the arbitration award pursuant to MCR 2.116(C)(7); (2) lack of subject-matter jurisdiction pursuant to MCR 2.116(C)(4); and (3) failure to state a claim pursuant to MCR 2.116(C)(8) on the ground that MCL 330.1113; MSA 14.800(113) is an unconstitutional legislative interference with the power of the Civil Service Commission.
Plaintiff claims on appeal that the arbitration award which determined that she was not entitled to assault pay benefits under the collective bargaining agreement does not bar her cause of action for assault pay benefits pursuant to MCL 330.1113; MSA 14.800(113). Plaintiff contends that the latter cause of action is distinct from the arbitration award under the collective bargaining agreement because it is statutory in nature. Further, she claims that issues decided at arbitration were outside the scope of the arbitrator’s expertise.
In Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), the United States Supreme Court held that a prior arbitration determination that petitioner was not discharged by his employer as a result of racial discrimination did not bar subsequent litigation against the employer under Title VII of the Civil Rights Act of 1964 for unlawful racial discrimination. In so holding, the Court emphasized the importance of the congressional policy underlying the Civil Rights Act of 1964, which is the prevention of racial discrimination. 415 US 47. In rejecting an argument that an employee’s rights under Title VII may be waived, the Court stated:
Title VII’s strictures are absolute and represent a congressional command that each employee be free from discriminatory practices. Of necessity, the rights conferred can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII. [415 US 51.]
From this unequivocal congressional policy and from the express statutory provision for a private cause of action for victims of employment discrimination, the Court inferred that Congress did not intend that an arbitration award based upon a union grievance would foreclose relief through federal courts. Thus, Congress created a statutory cause of action independent from the petitioner’s cause of action for breach of the collective bargaining agreement, and this independent statutory cause of action was not barred by an adverse arbitration award, the scope of which is confined to contractual interpretation and application. 415 US 52-54.
Here, plaintiff invokes the Gardner-Denver exception to the rule that arbitration decisions are given collateral estoppel effect by courts. Plaintiff reads Gardner-Denver as allowing resort to legal action whenever a right contained in a collective bargaining agreement has a statutory source.
This Court and the Michigan Supreme Court have rejected the application of Gardner-Denver in contexts similar to the instant case. In Fulghum v United Parcel Service, Inc, 424 Mich 89; 378 NW2d 472 (1985), the Supreme Court recognized the strong policy of according finality to decisions reached in arbitration. Application of Gardner-Denver was expressly rejected:
Although the [United States] Supreme Court recognized an exception to the rule of finality in the context of a Title VII employment discrimination claim in Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), it has no application to this case. Here, the finding of the grievance committees that plaintiffs seek to avoid is not one of constitutional magnitude or statutory construction; rather, it is a simple question of fact clearly within the competence of the grievance committees. [424 Mich 93.]
Since there is neither a constitutional cause of action nor a question of law concerning statutory construction or interpretation in the instant case, Fulghum suggests that Gardner-Denver has no application.
Further in Saginaw v Michigan Law Enforcement Union, Teamsters Local 129, 136 Mich App 542, 553-554; 358 NW2d 356 (1984), this Court distinguished Gardner-Denver as follows:
The differences between the instant case and Gardner-Denver are readily apparent. In the instant case, plaintiff did not initiate an independent civil action, pursuant to a statutory scheme, for judicial consideration of its rights; rather, it filed a complaint to have a binding arbitration award vacated. Thus, plaintiff was not seeking judicial consideration of rights separate from those considered by the arbitrator in resolving the contractual dispute. Additionally, unlike the collective-bargaining agreement in Gardner-Denver, the instant agreement incorporates the terms of that statute. By specifically incorporating the terms of the statute into the contract, the parties empowered the arbitrator to interpret the statute. Statutory interpretation became integrated with contractual interpretation.
We read Saginaw, supra, as rejecting the idea that Gardner-Denver allows for the survival of any statutory cause of action following an arbitration determination.
In the instant case, the assault pay provision of the collective bargaining agreement stated:
Section K. Public Acts 414, 232 & 280.
Employees covered under the above Public Acts and who are injured during the course of their employment as a result of an assault by a recipient (or inmate) or as a result of helping another employee in subduing a recipient or injured during a riot shall receive their full net wages as follows: The employee shall receive in addition to Workers Compensation, a supplement from the Department which together with Workers Compensation benefits shall equal but not exceed the weekly net wage of the employee at the time of injury.
MCL 330.1113; MSA 14.800(113) [1976 PA 414] is similar:
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.
Thus, MCL 330.1113; MSA 14.800(113) is substantially merged with the assault pay provision of the collective bargaining agreement, and the arbitrator is empowered to make determinations on both the statute and the contract. Because there is no question of statutory construction in the instant case, but rather a pure question of fact, i.e., whether plaintiffs disability was caused by the assault, arbitration was an appropriate, exclusive and final forum for the resolution of the matter. Although plaintiff suggests that the arbitrator’s admission that he had no special expertise to make judgments about medical issues demonstrates that the arbitrator acted outside the scope of his expertise and that the circuit court would be an appropriate forum for plaintiffs cause of action, plaintiff fails to explain how the arbitrator is less qualified to make findings of fact concerning medical matters than a trial court would be. The medical issue is a pure question of fact and arbitration was an appropriate means to decide the question.
Further, we do not find that determinations of whether employees are entitled to assault pay approaches the magnitude of weighty policies underscored by the Civil Rights Act of 1964. The question in the instant case is more similar to that decided in Saginaw v Michigan Law Enforcement Union, supra, and therefore the application of the Gardner-Denver exception is not justified.
Plaintiffs final contention on appeal is that the arbitration is an unconstitutional intrusion upon the powers of the judiciary set forth in Const 1963, art 6, § 1. We find no merit to this claim. Arbitration is a well-established mechanism for dispute resolution which is highly favored by the courts. See Fulghum, supra, pp 92-93.
We find that the circuit court correctly determined that the arbitration award barred subsequent litigation of plaintiffs claim for assault pay. Summary disposition was therefore properly granted to defendant.
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Per Curiam.
Following a jury trial, defendant was convicted of attempted unauthorized driving away of a motor vehicle, MCL 750.413; MSA 28.645; MCL 750.92; MSA 28.287. He appeals as of right.
Defendant first contends that the trial court erred so as to require reversal in denying his codefendant’s counsel’s request to ask prospective jurors during voir dire "if they were to vote now how they would decide.” Defendant should have stated on the record that he joined in the request in order to preserve the issue for appeal. However, in reviewing the substance of the issue, we conclude that reversal is not required.
The scope of voir dire examination of prospective jurors is within the discretion of the trial judge and his decision will not be set aside absent an abuse of that discretion. People v Harrell, 398 Mich 384, 388; 247 NW2d 829 (1976). In this case, the trial judge stated that he denied the request because the prospective jurors had indicated that they would follow the law given to them regardless of their feelings. This was sufficient reason to deny the request. See McNabb v Green Real Estate Co, 62 Mich App 500, 505; 233 NW2d 811 (1975), lv den 395 Mich 774 (1975); 2 Honigman & Hawkins, Mich Court Rules Annotated (2d ed), p 466. The trial court’s other inquiries as to the jurors’ preconceived opinions or prejudices were adequate to afford counsel information necessary to intelligently exercise peremptory challenges and challenges for cause. McNabb, supra.
Defendant also contends that he did not receive effective assistance of counsel because his trial counsel failed to timely move to exclude evidence of defendant’s prior convictions, failed to make any substantive opening statement, failed to make any substantive closing statement, allowed his client to take the witness stand with no preparation, and absented himself during final jury instructions. To the extent defendant’s claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court in connection with a motion for a new trial which evidentially supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Lawson, 124 Mich App 371, 373; 335 NW2d 43 (1983). Since defendant failed to move for a new trial or an evidentiary hearing on his claims of ineffective assistance of counsel and since such a hearing would be necessary with respect to the first four claims, this Court is unable to review those claims. Defendant may wish to request a Ginther hearing below.
With respect to defendant’s final claim of ineffective assistance of counsel, the record indicates that the defendant waived his right to trial counsel’s presence during jury instructions and agreed to be represented by codefendant’s counsel. Cf. People v Gamble, 124 Mich App 606, 609; 335 NW2d 101 (1983), lv den 417 Mich 1100.38 (1983). Hence that claim is without merit.
Affirmed. | [
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] |
Per Curiam.
Plaintiff S.S. Aircraft Company appeals from a November 6, 1985, circuit court order which granted defendant Piper Aircraft Corporation summary disposition.
The dispute between these parties arose after an airplane crash. On February 19, 1981, a Piper Cheyenne aircraft crashed while making an approach for a landing at the Oakland-Pontiac Airport. All three occupants, Joseph Ninowski, Daniel Ninowski and Dean Spencer, were instantly killed. On January 27, 1983, wrongful death actions were filed on behalf of the estates of Daniel and Joseph Ninowski against S.S. Aircraft, Piper and other defendants in the Wayne Circuit Court. The complaints alleged that S.S. Aircraft, as owner of the airplane, was negligent in the operation and maintenance of the aircraft and that Piper negligently and in breach of warranty designed, manufactured and sold the aircraft in a defective condition. Thereafter, Piper filed a motion for a change of venue and on May 10, 1983, the two complaints were transferred to the Oakland Circuit Court and assigned to Judge Templin.
On February 15, 1984, the personal representative of Dean Spencer filed a wrongful death action in the Wayne Circuit Court, which was also transferred to the Oakland Circuit Court and consolidated for discovery purposes with the Ninowski suits.
On September 21, 1984, S.S. Aircraft filed a cross-claim against Piper in the wrongful death actions, seeking indemnity and contribution. On January 15, 1985, S.S. Aircraft filed a motion for leave to amend its cross-complaint against Piper to recover for the damages to its aircraft. Piper filed a response to S.S. Aircraft’s motion and argued that amendment was futile because the claim was barred by the applicable statute of limitations. On February 6, 1985, Judge Templin, after a hearing on S.S. Aircraft’s motion, denied the motion to amend and an order to that effect was entered.
Following the denial of S.S. Aircraft’s motion to amend its cross-claim against Piper, S.S. Aircraft, on February 13, 1985, commenced the instant suit alleging a products liability cause of action as well as claims for indemnity and contribution. The case was originally assigned to Judge Gage, and, upon stipulation of the parties, it was later transferred to Judge Templin.
On June 5, 1985, Piper filed a motion to strike the claims for indemnity and contribution on the ground that they were duplicative of the claims 5.5. Aircraft was pursuing against Piper as cross-claims then pending in the wrongful death actions. In addition, Piper sought summary disposition on the products liability claims due to the running of the period of limitations. The hearing on Piper’s motion was held on November 1, 1985, after which Judge Templin granted Piper’s motion in its entirety. The trial court’s oral opinion was incorporated into a November 6, 1985, order from which 5.5. Aircraft appeals as of right.
S.S. Aircraft contends that the trial court abused its discretion by granting summary disposition on behalf of Piper. We disagree.
As of the filing of the instant suit on February 13, 1985, there were two separate civil actions involving S.S. Aircraft and Piper resulting from the plane crash of February 19, 1981. The first set of cases was the wrongful death actions against S.S. Aircraft and Piper. In the wrongful death cases, S.S. Aircraft had a cross-claim pending against Piper for indemnification and contribution. Also, it is in those cases that S.S. Aircraft attempted to amend its cross-claim against Piper so as to allege a products liability cause of action. The second case is the current one on appeal, where S.S. Aircraft filed a complaint alleging a products liability cause of action and claims for indemnity and contribution from Piper. S.S. Aircraft’s appeal was ostensibly taken from Judge Templin’s order granting Piper summary disposition against S.S. Aircraft on this complaint. On appeal, however, S.S. Aircraft is attempting to seek appellate review over a ruling Judge Templin issued in the first set of cases, the wrongful death actions.
The order denying amendment in the wrongful death cases cannot be collaterally attacked in the instant case. The decision of a court having jurisdiction is final when hot appealed and cannot be collaterally attacked. Life Ins Co of Detroit v Burton, 306 Mich 81; 10 NW2d 315 (1943). S.S. Aircraft has not alleged that the trial court lacked jurisdiction to hear the wrongful death cases, thus it may not attack the court’s order by bringing a second suit. The rule against collateral attack applies to both orders and judgments. Stewart v Michigan Bell Telephone Co, 39 Mich App 360, 369; 197 NW2d 465 (1972), quoting 49 CJS, Judgments, § 406, p 802.
The issue of whether the trial court in the wrongful death suits erred by denying S.S. Aircraft’s motion to amend is not properly before this Court. S.S. Aircraft had an opportunity to appeal the trial court’s order; instead of pursuing an interlocutory appeal, plaintiff filed another lawsuit.
The other issue before this Court is whether the trial court abused its discretion by granting defendant summary disposition against plaintiff on the basis of the statute of limitations. On June 5, 1985, pursuant to MCR 2.116(C)(7), Piper filed a motion for summary disposition alleging that plaintiff’s products liability cause of action was barred by MCL 600.5805(9); MSA 27A.58O50), which allows three years for a products liability action to be brought.
A second statute explains when the time begins to run, MCL 600.5827; MSA 27A.5827. The law states:
Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.
In products liability cases, a cause of action accrues when a plaintiff by exercise of reasonable diligence discovers or should have discovered that he or she has a possible cause of action. Bonney v The Upjohn Co, 129 Mich App 18, 24; 342 NW2d 551 (1983), lv den 419 Mich 868 (1984).
The standard of review on a motion for summary disposition pursuant to MCR 2.116(C)(7) is that this Court must accept all of plaintiff’s wellpled allegations as true and construe them most favorably to the plaintiff. Hansen v Upper Peninsula Power Co, 144 Mich App 138, 140; 373 NW2d 270 (1985). In the instant case, S.S. Aircraft’s products liability claim accrued on the date of the crash — February 19, 1981. This claim became forever barred by the running of the statutory period on February 19, 1984. Thus, the complaint filed in the instant suit on February 13, 1985, is untimely. Therefore, the trial court correctly granted Piper summary disposition on the basis that S.S. Aircraft’s claim was barred by the statute of limitations.
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M. J. Kelly, P.J.
Defendant Frank Schwiesow appeals as of right from the property and child custody provisions of a divorce judgment entered August 20, 1985. We remand for further proceedings consistent with this opinion.
Plaintiff and defendant were married on August 25, 1973, when plaintiff was sixteen and defendant twenty-seven years of age. Two children were born of the marriage, a son, Cody William Schwiesow, born October 23, 1975, and a daughter, Sky Nicole Schwiesow, born June 11, 1977.
Immediately after their marriage, the parties moved to the Schwiesow family farm which had been in defendant’s family for generations and which had been given to defendant by his father as a gift in June of 1972. During the early years of their marriage, the parties worked together making extensive repairs to the farmhouse, adding a basement, remodeling the kitchen, and adding a fireplace and a new heating system. The parties also tore down old outbuildings, repaired and replaced fencing and added stalls to the barn. The parties built a 24' by 30' workshop outside the house. In 1976, defendant executed a deed on the farm property naming himself and plaintiff tenants by the entirety.
At all times during the marriage, defendant was employed by the Presque Isle Electric Company. The farm was not a money-making venture and, at the time of trial, defendant’s sole income was $450 a week in net salary. Plaintiff completed her high school education and graduated magna cum laude from Alpena Area Community College in the years following the parties’ marriage. In 1980, plaintiff began school at Saginaw Valley State College and graduated in December of 1982 with a bachelor’s degree and a secondary teaching certificate. In order to attend Saginaw Valley State College, which was some distance from the parties’ home, plaintiff resided in an apartment with her two brothers in Saginaw during the week and commuted home for the weekends. During the years plaintiff attended Saginaw Valley State College, plaintiff’s mother stayed in the parties’ home and helped defendant care for the two minor children during the week.
Plaintiff completed her bachelor’s degree work in December of 1982 and moved back home. On October 20, 1983, however, plaintiff left the marital home and moved several miles away to Black Lake, where she and the children took up residence with her mother. On December 17, 1983, plaintiff was involved in a serious automobile collision and suffered closed-head injuries, resulting in a coma. The children were immediately returned to the farm and resided there with their father.
Plaintiff slowly emerged from the coma and was discharged from the hospital on April 14, 1984. Plaintiff continued to make steady recovery and at the time of trial was only minimally impaired. She has some residual weakness in her right hand which prohibits her from cooking on a gas stove. Because of poor balance, plaintiff used a quad cane at the time of trial but her doctors anticipated that she would advance to a single cane within a matter of months. Plaintiff’s speech is good but somewhat slower than it was prior to the accident. Plaintiff is unable to drive and relies wholly upon her mother for transportation. When plaintiff left the parties’ home in October of 1983, she moved into a small private apartment attached to her mother’s house, comprised of a kitchenette, living room, bedroom and bath.
Plaintiff filed for divorce on May 4, 1984, less than one month after her discharge from the hospital, and requested permanent physical and legal custody of the two children. Although plaintiff filed a motion for temporary custody in August of 1984, an order was never entered on that motion. On December 22, 1984, plaintiff left with her mother for Kansas where she remained until April 13, 1985, just prior to trial in this case. While in Kansas, plaintiff further recuperated from her injuries by swimming and walking daily. She exercised no visitation with her children during the 3íá-month stay in Kansas.
Defendant eventually moved for a temporary custody order and on February 19, 1985, the parties entered into a stipulation providing that defendant would have primary physical custody of both children until the end of the 1984-85 school year and that plaintiff would have primary physical custody during the summer vacation period beginning July 1, 1985. Since the parties’ separation in October of 1983, the minor children have resided at the farm with their father from December of 1983 until at least June 1, 1985. _
The custody portions of the trial were conducted on April 18 and May 31, 1985. At the conclusion of the May hearing, the trial court awarded the parties joint legal custody with physical custody to alternate between the parties every other school year. Plaintiff was awarded primary physical custody of the children commencing September 1, 1985, for the 1985-86 school year and defendant was awarded primary physical custody of the children commencing September 1, 1986, for the 1986-87 school year. Custody is to be shared by the parties during the summer months. The judgment of divorce was entered August 20, 1985, following which defendant sought in this Court a stay of the custody transfer pending resolution of this appeal. Defendant’s request for a stay was denied by this Court by order of September 3, 1985. The parties waived oral argument on appeal. We presume, however, that plaintiff exercised her custody rights for the school year that has just ended.
i
Defendant challenges the arrangement of alternating physical custody but does not seek reversal of the award of joint legal custody. Defendant argues that the trial court erred in refusing to find an established custodial environment and in thus relieving plaintiff of the burden of establishing by clear and convincing evidence that a change in established custodial environment was in the best interest of the children. MCL 722.27(l)(c); MSA 25.312(7)(l)(c). Defendant correctly apprehends the critical issue. Absent the existence of an established custodial environment, the parties compare equally under the totality of factors which determine the best interests of the children, MCL 722.23; MSA 25.312(3), in which case the trial court was free to order a shared physical custody arrangement. MCL 722.26a; MSA 25.312(6a).
The trial court in this case rendered extensive and detailed findings on each of the factors enumerated in MCL 722.23; MSA 25.312(3). It is clear from these findings that in refusing to find an established custodial environment, the trial court was reluctant to "punish” the plaintiff mother for her misfortune of having been seriously injured at an inopportune time, especially where all other evidence revealed that she was a particularly responsible and self-motivated individual. We share the trial court’s concern. However, the Legislature has made a policy decision to standardize the criteria for resolving custody disputes. Baker v Baker, 411 Mich 567, 576; 309 NW2d 532 (1981). Under the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., custody disputes must always be resolved in favor of the best interests of the children involved. In accordance with this emphasis on the children’s interests, the Legislature has imposed a difficult burden on those who seek to remove children from an established custodial environment:
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may:
(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age. 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. [MCL 722.27(l)(c); MSA 25.312(7)(l)(c).]
We are persuaded on the basis of the evidence presented that the two minor children in this case had an established custodial environment with their father at the time of trial. Both children had lived in that setting all of their lives. Both had established good to excellent academic records at the local school which they attended. For most of the five years immediately preceding the divorce trial, there were long absences on the part of the mother. From some undisclosed date in 1980 until December of 1982, when Cody was between four and seven and Sky between two and five, the plaintiff resided away from the home during the weekdays to attend school at Saginaw Valley State College. Defendant and the children’s maternal grandmother were the primary caretakers of the children during this time. After plaintiff graduated, she moved back home for a period of about ten months and then left with her children to reside with her mother. The children were with plaintiff for approximately two months and then spent the next eighteen to twenty months on the farm in the primary physical custody of their father. During the three or four months in which plaintiff was in a coma and during the ZVi months that plaintiff was in Kansas, the children had no visitation with their mother.
We do not mean to imply that plaintiff is in any way blameworthy for her absences from the children. We examine the circumstances surrounding the care of the two minor children in the years immediately preceding the divorce trial to determine whether they were being cared for in an established custodial environment. Our concern is not with the reasons behind the custodial environment but with the existence of such an environment. See Moser v Moser, 130 Mich App 97, 100; 343 NW2d 246 (1983), Wealton v Wealton, 120 Mich App 406, 410; 327 NW2d 493 (1982), and Blaskowski v Blaskowski, 115 Mich App 1; 320 NW2d 268 (1982). There is no doubt that the minor children in this case had an established custodial environment at the time of trial. This is not a case in which the children resided with one parent in temporary living quarters and had extensive contact with the noncustodial parent, pending resolution of an extended custody dispute. See Breas v Breas, 149 Mich App 103; 385 NW2d 743 (1986), and Curless v Curless, 137 Mich App 673; 357 NW2d 921 (1984). Nor is this a situation in which the custodial parent, after having established a stable and permanent custodial environment, voluntarily and temporarily relinquishes physical custody for a particular purpose and pursuant to a stipulated order. See Theroux v Doerr, 137 Mich App 147; 357 NW2d 327 (1984).
In this case, the minor children have lived since birth in the family home with defendant father having continuous and nearly uninterrupted custody. For various reasons, plaintiff mother has been temporarily absent from the home a significant part of the five years preceding the divorce trial. We conclude that because an established custodial environment existed, plaintiff had the burden of coming forward with clear and convine ing evidence to show that a change of environment would be in the best interests of the children.
Based on the trial court’s own findings at the conclusion of trial, the evidence did not clearly and convincingly establish that a change in custodial environment would be in the best interests of the children. The trial court considered each of the factors enumerated in MCL 722.23; MSA 25.312(3) and concluded that the parents compared equally. However, we are not prepared to remand with directions to the trial court to enter a custody order in favor of defendant. Much has happened in the preceding year to significantly affect the best interests of the children. They have spent an entire school year with their mother and possibly two summers under the alternating-custody arrangement. We therefore remand this case for a hearing at which the trial court shall determine whether there is clear and convincing evidence to justify a disruption in the established custodial environment of the family farm. We note that such a hearing is similar to the hearing expressly provided for by the trial court in its judgment of August 20, 1985:
It is further ordered that the issue of primary physical custody shall be reviewed by the Court at the end of the 1985-86 school year or sooner on the petition of the Defendant alleging a material change in circumstances.
One factor to be weighed at the hearing on remand is the wishes of the children with regard to alternating custody. At trial, both children strongly stated that they did not wish to live in different places from school year to school year. In addition, testimony at trial established that there was very little communication between the parties with regard to the children or anything else, which suggests to us some residual tensions or hostility. Pursuant to MCL 722.26a(l)(b); MSA 25.312(6a)(l)(b), joint custody is available only where "the parents will be able to cooperate” on matters concerning their children. Unless the trial court is presented with clear and convincing evidence to warrant a contrary finding, the court shall enter a custody order after the hearing on remand in favor of preserving the established custodial environment.
ii
Defendant also argues on appeal that the trial court erred in including the farm as a marital asset, in excluding the insurance settlement as a marital asset, in refusing to impute some earning capacity to plaintiff and in awarding plaintiff a portion of defendant’s savings-retirement account. The parties’ assets at the time of the divorce consisted primarily of $130,000 in insurance settlement proceeds arising out of the automobile accident, the farm valued at approximately $66,000, a vested savings-retirement account through defendant’s employer which at the time of trial contained $33,700, a $4,000 savings account and various items of personal property and farm equipment with stipulated values.
The trial court awarded to plaintiff all of the $130,000 in insurance proceeds, a lien against the farm property in the amount of $23,000, payable five years from the date of judgment, and $15,000 as plaintiff’s share of the savings-retirement plan, payable within one year from the date of judgment or subject to a seven percent interest charge there after. Defendant argues on appeal that it is inequitable for plaintiff to receive all of the insurance proceeds as well as a $23,000 lien against the farm property, which had been passed on through defendant’s family for generations. Defendant further argues that the trial court improperly calculated plaintiff’s share of the savings-retirement plan and rendered an award unduly burdensome to the defendant.
The trial court in a divorce action has considerable discretion in rendering what it views to be an equitable property division upon divorce and this Court, though we review the evidence de novo, does not disturb that disposition unless there has been an abuse of discretion. In dividing marital assets, the trial court must consider the duration of the marriage, each party’s contribution to the marital estate, the parties’ stations in life and earning abilities, fault, if any, in the breakdown of the marriage and any other relevant circumstances. See Bone v Bone, 148 Mich App 834, 838-839; 385 NW2d 706 (1986), and cases cited therein.
In this case, the parties were married almost twelve years prior to the divorce and enjoyed a moderate lifestyle. Both parties contributed equally to the marriage. Testimony revealed that during the marriage significant improvements had been made to the Schwiesow farm with marital funds and labor and that plaintiff had helped in making those improvements. We do not believe the trial court abused its discretion in awarding plaintiff an interest in the farm equal to approximately one-third of its value.
Nor do we think there was error in the trial court’s decision to award plaintiff the entire proceeds of the insurance settlement. Those proceeds were intended to compensate plaintiff for her injuries, which were serious and long-term. Plaintiff’s planned investment of the funds will yield her a monthly income of $863 when combined with her social security benefits, which are minimal. It is also quite possible that plaintiff, who is relatively young, will enjoy future earnings as she progresses through the rehabilitation process. Moreover, if she invests the $23,000 that she will receive as her interest in the marital property in the same manner that she is investing the $130,000 received in the settlement, she will have a monthly income of nearly $1,000. Defendant nets $450 a week for a monthly net income of between $1,800 and $2,000. If we reduce defendant’s income by the amount he will have to pay in loan payments on the $23,000 owed plaintiff and due five years from the date of judgment, and if we further reduce defendant’s income by the amount he will have to pay in child support if the children remain with plaintiff during any significant periods, or, in the alternative, by the amount necesssary to support his children while they are living with him, his net income will be comparable to that enjoyed by plaintiff from the investment of her liquid assets. We think this result is equitable.
We do not, however, agree that plaintiff is entitled under the circumstances of this case to a portion of the savings-retirement plan. Although it is a marital asset subject to division upon divorce, an equitable disposition of marital property does not necessarily require the division of a pension plan, see Bone v Bone, supra at 839-840, and we think that the award of the $130,000 settlement rendered division of the savings-retirement account unnecessary. Even if we assume that the proceeds from the insurance settlement do not constitute a marital asset, nonmarital assets may be considered in the division of marital property where the marital assets are insufficient to support the parties separately. See Charlton v Charlton, 397 Mich 84; 243 NW2d 261 (1976).
The funds contained in the savings-retirement plan are not available to plaintiff until his position with his employer is terminated, presumably upon his retirement. At that time, defendant will have only the savings-retirement plan to rely on for his support and maintenance. Plaintiff, in the meantime, will still have the principal of the insurance settlement in addition to whatever pension benefits she may earn through future employment. Given plaintiff’s receipt of $130,000, we think it fair to leave defendant his savings-retirement plan for his retirement years.
We further note that even if we were to agree that the savings-retirement account should be divided as a marital asset in order to achieve an equitable property division, we could not affirm the award in this case because we are not satisfied that it is supported by any evidence on the record. The only evidence introduced by either party at trial regarding the valuation of the savings-retirement account was a document showing the amount of money actually in the account, $33,700. Neither party produced any expert testimony or evidence regarding the present value of this amount in light of the fact that the money could not be obtained until some undetermined point in the future. The trial court simply divided the amount by one-half to arrive at a figure of $16,850 and reduced that amount by $1,850 to account for "present value,” rounding plaintiff’s award off to $15,000. We do not think this is an appropriate way to determine the value of so significant a marital asset as a pension or retirement plan. See Zecchin v Zecchin, 149 Mich App 723, 730-731; 386 NW2d 652 (1986), and Boyd v Boyd, 116 Mich App 774, 779-780; 323 NW2d 553 (1982). If plaintiff were to receive a portion of the savings-retirement plan, the value of that plan would have to be reduced to present value. Although the funds are vested, they are not available until some future event. It was plaintiffs burden to come forth with evidence regarding the present value of the savings plan and her failure to do so precludes, under these circumstances, the award of $15,000.
We affirm in part and remand for further proceedings consistent with this opinion on the issue of custody and for entry of a modified judgment of divorce awarding defendant’s savings-retirement plan to him free and clear of any interest on the part of plaintiff.
We do not retain jurisdiction.
D. E. Holbrook Jr., J., concurred in the result only.
The trial court’s temporary custody order provided that the children would stay with defendant until July 1, 1985. In his brief on appeal, defendant contends that he maintained physical custody until September 1, 1985. Plaintiff contends in her brief on appeal that commencing on June 1, 1985, until September 1, 1985, "the children alternated residences on a weekly basis between the mother and the father.” Since the second custody hearing was conducted in May of 1985, we do not have a record of the custody arrangements as they existed after that date.
The parties settled on a division of farm and personal assets which was equalized by awarding plaintiff the $4,000 in savings. | [
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Per Curiam.
Defendant was charged in Oakland County with one count of open murder, MCL 767.71; MSA 28.1011, and, possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), for the shooting death of Keith Hall. Following a preliminary examination held on April 26, 1984, the examining magistrate determined that the shooting was accidental and entered an order dismissing all charges against the defendant. The prosecution appealed the dismissal to the circuit court, which held that the district judge had not abused his discretion in refusing to bind the defendant over for trial. The prosecution now appeals to this Court by leave granted. We reverse.
The testimony at the preliminary examination reveals that the decedent, Keith Hall, went to his ex-girlfriend’s, Corlinda Cowart’s, apartment to visit his illegitimate children. Because of prior violent confrontations with Hall, Cowart asked him to leave, but he refused. The defendant, Co-wart’s brother, came to the apartment in response to a request from a second sister for assistance in dealing with Hall. Defendant confronted Hall with a rifle. As he was racking the gun, it discharged, fatally wounding Hall. Based on this evidence, the prosecution argues on appeal that the district court erred as a matter of law when it refused to bind defendant over for trial on a charge of murder.
It is the obligation of the examining magistrate to determine whether a crime has been committed and whether there is probable cause to believe that defendant committed it. MCL 766.13; MSA 28.931. In discharging that duty, the magistrate has a duty to pass judgment on the credibility of the witnesses as well as the weight and competency of the evidence, but should not take the place of a trier of fact and discharge a defendant when the evidence conflicts or there is a reasonable doubt as to defendant’s guilt. People v Woodland Oil Co, Inc, 153 Mich App 799; 396 NW2d 541 (1986). A reviewing court should not disturb a magistrate’s determination at the preliminary examination unless a clear abuse of discretion is apparent from the record. People v Shipp, 141 Mich App 610; 367 NW2d 430 (1985), lv den 422 Mich 934 (1985).
In this case, the magistrate determined that the evidence established that the shooting was accidental and therefore would not support the charge of murder. Certainly, it was within the authority of the examining magistrate to find that the evidence did not establish the required intent or malice to justify a bindover on murder charges. People v King, 412 Mich 145; 312 NW2d 629 (1981). After reviewing the evidence, we cannot say that the magistrate abused his discretion in finding that the shooting was accidental. The evidence indicated that defendant went to his sister’s apartment armed with a gun to confront Hall, who had a past history of physical abuse directed at defendant’s sister. After defendant racked the gun and a shot discharged, defendant immediately stated that he did not mean to shoot Hall. This evidence that defendant lacked the intent to shoot Hall was unrebutted by any evidence produced by the prosecutor. Accordingly, the examining magistrate did not err in refusing to bind the defendant over for trial on an open charge of murder.
However, simply because the magistrate determined that defendant could not properly be bound over for trial on murder charges does not mean the case against the defendant should have been totally dismissed. An examining magistrate has the obligation to consider binding a defendant over on lesser included offenses where such offenses are supported by the evidence offered at the preliminary examination. King, supra, p 153. MCL 766.13; MSA 28.931 provides:
If it shall appear to the magistrate at the conclusion of the preliminary examination either that an offense has not been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant. If it shall appear to the magistrate at the conclusion of the preliminary examination that a felony has been committed and there is probable cause for charging the defendant therewith, the magistrate shall forthwith bind the defendant to appear before the circuit court of such county, or other court having jurisdiction of the cause, for trial.
Pursuant to this statute, even where the charged offense has not been established, if a lesser included offense is established, then defendant should be bound over for trial on that charge. See People v Randall, 42 Mich App 187; 201 NW2d 292 (1972).
In this case, we must determine whether the magistrate abused his discretion by not binding defendant over to the circuit court on any charge. From the record, it does not appear that the magistrate even considered any possible lesser included offenses that may have been established by the evidence. Thus, this Court must examine the record to determine if there was sufficient evidence to bind defendant over on any felony charges, such as voluntary or involuntary manslaughter, MCL 750.321; MSA 28.553, misdemeanor manslaughter, MCL 750.239; MSA 28.436, or reckless use of a firearm resulting in death, MCL 752.861; MSA 28.436(21).
Based on the evidence in this case, we find that the magistrate abused his discretion in not binding defendant over for trial on the charge of involuntary manslaughter, MCL 750.321; MSA 28.553. Unlike voluntary manslaughter, which requires that defendant intended to kill, the crime of involuntary manslaughter is established if a defendant acts in a grossly negligent, wanton or reckless fashion, in causing the death of another. A finding of gross negligence for purposes of involuntary manslaughter requires:
(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.
(2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.
(3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. [People v Orr, 243 Mich 300, 307; 220 NW 777 (1928).]
The crime of involuntary manslaughter does not require that the defendant be personally aware of the danger or that he knowingly and consciously create that danger. The test only requires the danger to be apparent to the ordinary mind. People v Sealy, 136 Mich App 168; 356 NW2d 614 (1984).
In the present case, we believe that the evidence offered at the preliminary examination was sufficient to establish that defendant was grossly negli gent in the death of the victim. It is clear that defendant was confronted with a situation requiring him to exercise ordinary care and diligence to avert injury to another by his handling of the firearm. The resulting harm certainly could have been averted by an exercise of ordinary care and diligence by the defendant in his use of the firearm. Further, we believe that the ordinary mind is aware of the fact that a person must be extremely cautious in his handling of a firearm, especially racking the gun in the vicinity of another person, as there is always the possibility that a loaded gun may accidentally discharge. Here, given the evidence of defendant’s actions, it is for the trier of fact to determine if defendant was grossly negligent in the death of the victim. Accordingly, we hold that the magistrate abused his discretion in failing to bind defendant over for trial on the charge of involuntary manslaughter.
We further note that the charge of involuntary manslaughter is the most serious crime that the jury can consider at any subsequent trial. However, this does not preclude the trial court from instructing the jury on any lesser included offenses, such as reckless use of a firearm resulting in death, MCL 752.861; MSA 28.436(21), which may be requested by the defendant and warranted by the evidence offered at trial.
Therefore, the order of the district court dismissing the charges against the defendant is reversed and the case remanded for trial on the crime of involuntary manslaughter.
Reversed and remanded. | [
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] |
Per Curiam.
In this class action lawsuit, plaintiffs are a relatively small and historically exclusive class, comprised of those judges, the widows of judges, and the estates of those judges and their widows, who were judges and members of the judges’ retirement system prior to September 8, 1961, and who retired from the bench after December 18, 1974. In essence, plaintiffs argue that defendants incorrectly computed the retirement annuity to be paid them under the retirement system. In the Court of Claims, summary disposition was granted in favor of defendants. Plaintiffs now appeal and we reverse.
The present action arises out of the fact that the method for computing a retired judge’s retirement annuity has been changed over the years. The judges’ retirement system was established by the Legislature pursuant to 1951 PA 198, the Judges’ Retirement Act. MCL 38.801 et seq.; MSA 27.125(1) et seq. Section 14 of the act originally provided for a retirement annuity of $4,500 per year. In 1952, the act was amended to increase the annuity to $7,500 for retired Supreme Court justices. In 1956, § 14 of the act was again amended, by 1956 PA 224, to provide that a retired judge would receive an annuity of one-half the annual salary being paid by the state to sitting judges. This amendment became known as the "escalator” clause because, as the salary of sitting judges increased, the retirement annuity also increased. The 1956 amendment also amended § 19 of the act to provide for the widows of judges to receive a retirement annuity of one-half the amount of the judge’s annuity.
Five years later, § 14 was again amended, by 1961 PA 169, which abolished the escalator provision and provided that a retired judge would receive as a retirement annuity one-half the salary paid by the state to him at the time of his retirement. In the next thirteen years, there were no amendments of substance, but in 1974 § 14 was again amended, by 1974 PA 337, to provide that the retirement annuity would be based, in part, on length of service. Under § 14 of the 1974 act, the annuity was equal to fifty percent of the annual salary paid by the state to the judge at the time of his retirement for the first twelve years of service. However, those judges serving more than twelve years on the bench would receive an additional annuity equal to 2 Vz percent of the annual salary paid by the state, at the time of retirement, for each year of service beyond twelve years and up to sixteen years. Thus, a judge with sixteen years service would receive an annuity equal to sixty percent of the salary paid to him by the state at the time of his retirement. While there have been amendments to § 14 since that time, those changes are not of significance to this appeal and the system put in place in 1974 is essentially the same as that currently contained in MCL 38.814(2); MSA 27.125(14X2).
The Supreme Court has held that the escalator judges, and their widows, have a vested right in the benefits of the escalator clause, which could not have been removed by the 1961 act. Murphy v Michigan, 418 Mich 341; 343 NW2d 177 (1984); Campbell v Judges’ Retirement Bd, 378 Mich 169; 143 NW2d 755 (1966). The Supreme Court had an opportunity to consider an issue similar to that posed in the case at bar in Hughes v Judges’ Retirement Bd, 407 Mich 75; 282 NW2d 160 (1979).
In Hughes, two escalator judges, Circuit Judges Sam Street Hughes and Marvin J. Salmon, filed suit to receive retirement annuity benefits based on both the escalator clause and the length-of-service benefits provided in the 1974 act. However, both judges had retired prior to the effective date of the 1974 act. The Court concluded that, while the plaintiffs were entitled to benefits under the escalator clause, they were not entitled to the additional length-of-service benefits under the 1974 act because they were retirees, rather than members of the retirement system, at the time the 1974 act went into effect. Thus, only judges who retire after the effective date of the 1974 act are entitled to benefits under the length-of-service provisions of that act.
In the case at bar, we are faced with the final permutation of the judges and their widows who were members of the retirement system under its various benefit schemes. That is, plaintiffs in the case at bar are those judges, their widows and the estates of those judges and widows who were members of the retirement system while the escalator clause was in effect, but did not retire from the bench until after the effective date of the 1974 act. Thus, we are faced with the question which the Hughes Court was not required to face, namely whether escalator judges who retire after the effective date of the 1974 act are entitled to benefits calculated under both the escalator clause and the length-of-service clause. Plaintiffs contend that they are so entitled, while defendants contend that plaintiffs are entitled to benefits calculated under either clause, but not under a combination of the two clauses. We agree with plaintiffs.
We find the following language from Campbell, supra, pp 181-182, to be both instructive and controlling:
We hold that a valid contract was entered into between judges and the State, that the State’s agreement thereunder to pay the judges certain benefits created vested rights for the judges upon their retirement, that these are enforceable and cannot be impaired or diminished by the State. This should be deemed to include not only the benefits provided by statute at the time of entry into the contract and of retirement, but, also, those later added by statutory amendment. The legislature may add to but not diminish benefits without running afoul of constitutional prohibition against impairment of the obligation of a contract.
Thus, by virtue of their membership in the retirement system during the time of the escalator clause, plaintiffs derived a vested right to benefits calculated under that clause. Thereafter, while the Legislature could not reduce their benefits, the Legislature could grant additional benefits. This the Legislature chose to do in 1974 by adding the length-of-service benefit. Nothing in that 1974 amendment limits the length-of-service benefit to nonescalator judges, nor did the 1974 amendment require the escalator judges to choose between the two benefit schemes. Thus, we are faced with the conclusion that, in 1974, the Legislature chose to give additional retirement benefits, based upon length of service, to all then sitting and future judges, regardless of their status as an escalator judge.
Accordingly, we conclude that plaintiffs have a vested right to retirement benefits calculated under both the escalator clause and the length-of-service clause. Therefore, the decision of the Court of Claims is reversed. Inasmuch as there remains to be resolved the amount of unpaid benefits due each of the plaintiffs, and the question of whether the statute of limitations bars recovery for a portion of the period from 1974 until the filing of the complaint, the matter is remanded to the Court of Claims for further proceedings consistent with this opinion. Jurisdiction is not retained. Costs to plaintiffs._
It is conceivable that the Legislature, had it chosen to do so, could have provided in the 1974 amendment that escalator judges could elect to receive the length-of-service benefits only by relinquishing their escalator benefits. However, the validity of such a provision is not before us since the Legislature chose not to make that attempt. | [
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Shepherd, P.J.
Plaintiffs filed suit on November 19, 1984, alleging that defendants had intentionally inflicted emotional distress, violated the collection practices act, MCL 339.901 et seq.; MSA 18.425(901) et seq., and negligently maintained plaintiffs’ mortgage account. The trial court granted summary disposition for defendants under MCR 2.116(C)(10). We affirm in part, but reverse with respect to the intentional infliction of emotional distress count.
The following facts are gleaned from the complaint, plaintiffs’ depositions, and other material submitted with defendants’ motions. Plaintiffs obtained a mortgage on their home on July 14, 1981, from defendant Commerce Mortgage Corporation. The loan was apparently arranged by defendant Diamond Mortgage Corporation. The proceeds of this mortgage were apparently applied to the purchase price of a second house, which plaintiffs intended to rent. At all times, plaintiffs alleged that they made timely payments on the mortgage, and defendants do not appear to dispute this fact. Despite this, however, plaintiffs claim they soon began receiving phone calls and letters indicating their payments were late, which continued even after repeated efforts to rectify the problem. Plaintiffs also alleged that defendant Walter Pytlak, on behalf of Diamond Mortgage, used “threatening, abusive, and profane language” during the phone calls.
In his deposition, plaintiff Robert Margita stated that Pytlak called plaintiffs at home "more than twenty times,” often several times a week. Most calls were to Robert Margita. Some came in the morning and some "late at night,” though apparently before 9:00 p.m. Pytlak’s language in at least eight to ten of the calls was "insulting” and attacked Robert Margita’s intelligence. On two occasions, at least, he called Margita "ignorant,” "incompetent,” "stupid,” and used numerous profane words. Margita could not remember the details of other abusive conversations he alleged occurred. Pytlak insinuated "repossession of the house, of legal action against us.” Plaintiffs also received dunning letters, at least one threatening them with foreclosure. At least one other representative of Diamond Mortgage called plaintiff about late payments, but did not use abusive, threatening or profane language. Margita repeatedly asked Pytlak not to call him. When he requested an audit of their account on several occasions, Pytlak told him Diamond Mortage’s records already indicated plaintiffs were "in arrears and that it wouldn’t be necessary.” Year-end statements from the mortgage company indicated plaintiffs were paid up, but they were billed for numerous late fees.
Robert Margita indicated that he reacted with anger. The calls and letters were aggravating, and often got him and his wife "at each other’s throats.” He feared losing his home. He experienced loss of sleep and irritability on his job as a police officer after receiving the calls. He claimed to have missed up to twelve days of work. He also indicated that the emotional stress aggravated his asthma condition.
Plaintiff Janet Margita testified that plaintiffs always paid on time. The calls and letters began about six months after they got the mortgage. When she initially spoke to Pytlak, he checked the records and concluded it must have been a mistake. The letters and calls became more frequent, however, often on a monthly basis. She talked to Pytlak on several occasions or listened in on his conversations with her husband. Pytlak threatened foreclosure as a possibility. He told Janet Margita her husband was stupid, ignorant, and did not know what he was talking about, had no idea how financing a house mortgage worked, and he (Pytlak) really didn’t want to talk about it any more in the future. At least twice, he called her husband "incompetent.” Once Pytlak said "I don’t know why I waste my time with you,” and hung up. When speaking to Janet Margita, Pytlak was generally "more snotty” than abusive. He also used profane language to her. She was unable to remember the details of other abusive conversations. On one occasion, she went through a year’s worth of receipts and checks with Pytlak over the phone and was told the problem must be at her end, rather than defendants’. Occasionally, plaintiffs would be told that it was all straightened out and there would be no more letters. Then the letters and calls would begin again, and the cycle would repeat. This continued for about two years. On two occasions, Pytlak told plaintiffs their account was being audited, but they received nothing other than year-end statements.
Janet Margita indicated that she became upset and the stress aggravated her problem with paroxysmal atrial tachycardia. She also experienced loss of sleep, and felt the calls and letters were a source of friction between the couple. She took several days off work, which she felt was necessi tated at least in part by the stress defendants induced.
The trial court file also contains copies of at least eighteen letters from Diamond Mortgage beginning in November, 1982, and ending in May, 1985, six months after plaintiffs filed suit, indicating that plaintiffs were past due on a mortgage payment and assessing a late charge. Eleven letters bear Pytlak’s name. Some of the letters were apparently sent several months in a row. Most simply indicate that plaintiffs had to pay their mortgage payment plus the late fee to bring their "account back to a current status.” One letter, signed by Jeff Saylor in August, 1984, describes itself as a "friendly reminder.” Letters from Saylor in October, 1984, and January, 1985, indicating that twice the usual amount was due, closed with the admonition that "I trust that you will prevent the necessity of further action by giving this letter your personal attention.” The May, 1985, letter, some six months after plaintiffs filed suit, was from an attorney and indicated that plaintiffs were two months in default and the file had been forwarded for foreclosure.
Defendants initially moved for summary disposition under MCR 2.116(C)(8), failure to state a claim. The trial court denied the motion, finding an adequate factual basis in their complaint for plaintiffs’ claims. Defendants subsequently moved to dismiss plaintiffs’ Count ii, alleging intentional infliction of emotional distress, on the grounds that defendants’ conduct was not so extreme and outrageous as to permit recovery. This motion was eventually expanded to include Count i, alleging violations of the collection practices act. The trial court treated the motion as one brought under MCR 2.116(C)(10), asserting that no disputed issue of material fact existed. The court concluded that, based on plaintiffs’ deposition testimony, the mortgage proceeds were intended to purchase income-producing property and that the collection practices act did not apply to such loans for business purposes. The court also concluded that, while defendants’ conduct was "in bad taste and obviously offensive,” it was not so extreme and outrageous as to support a recovery for intentional infliction of emotional distress. The court granted defendants’ motion and dismissed plaintiffs’ complaint.
A summary disposition motion under MCR 2.116(C)(10) should not be granted if a genuine issue exists as to any material fact. The test is whether the record which might be developed, giving the benefit of reasonable doubt, to the opposing party, would leave open an issue upon which reasonable minds might differ. To grant summary disposition, the court must be satisfied that it would be impossible for the claim to be supported at trial because of some deficiency which cannot be overcome. Tidwell v Dasher, 152 Mich App 379, 383; 393 NW2d 644 (1986).
The Supreme Court recently addressed the tort of intentional infliction of emotional distress in Roberts v Auto-Owners Ins Co, 422 Mich 594, 597; 374 NW2d 905 (1985). Faced with a claim of intentional infliction of emotional distress arising from a denial of insurance benefits, the Supreme Court concluded that because the plaintiff "failed even to meet the threshold requirements of proof to make out a prima facie claim of intentional infliction of emotional distress, we are constrained from reaching the issue as to whether this modern tort should be formally adopted into our jurisprudence 99
The Roberts Court, however, identified the four elements making up a prima facie claim: (1) ex treme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. 422 Mich at 602. The Court elaborated on the first element:
An oft-quoted Restatement comment summarizes the prevailing view of what constitutes "extreme and outrageous’.’ conduct:
"The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice’, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!’ ”
"The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. [Restatement Torts, 2d, § 46, comment d, pp 72-73.]”
Another Restatement comment further qualifies the conduct proscribed by this tort:
"The conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress. [Restatement Torts, 2d, § 46, comment g, p 76.]” [422 Mich at 602-603.]
See also Cebulski v Belleville, 156 Mich App 190; 401 NW2d 616 (1986).
Panels of this Court have recognized the tort of intentional infliction of emotional distress in non-insurance contract cases. In Ledsinger v Burmeister, 114 Mich App 12, 17-21; 318 NW2d 558 (1982), a panel of this Court found that racial epithets in the course of throwing the plaintiff out of the defendant’s retail store could be considered to be extreme and outrageous conduct under the circumstances. Similarly, in Rosenberg v Rosenberg Bros Special Account, 134 Mich App 342, 350-353; 351 NW2d 563 (1984), the Court found that allegations of twenty-six instances of misconduct when the defendant exerted his position over the widowed plaintiff to "browbeat” her into selling her business interests in her husband’s estate could be sufficiently outrageous to state a claim.
The extreme and outrageous character of the conduct may arise from the position of the actor or a relationship to the distressed party. Ledsinger, supra, p 19. For example, it may occur through an abuse of a relationship which puts the defendant in a position of actual or apparent authority over a plaintiff or gives a defendant power to affect a plaintiffs interest. Warren v June’s Mobile Home Village & Sales, Inc, 66 Mich App 386, 391; 239 NW2d 380 (1976). Whether a defendant’s acts were sufficiently outrageous depends upon the context in which the defendant committed them. Rosenberg, supra, p 353.
In the instant case, defendants’ business involves lending money for mortgages. It appears undisputed that the debt defendants attempted to collect was not and has never been overdue. Despite this, defendants or their agents repeatedly harassed plaintiffs through abusive phone calls or letters assessing late charges. Foreclosure was apparently threatened on several occasions. Defendants obviously have a great deal of power to affect plaintiffs’ credit rating and future borrowing ability. We believe defendants could have done nothing more outrageous in attempting to collect this imagined overdue debt, short of actually instituting foreclosure proceedings. It would be one thing if defendants were proceeding on a debt they had a right to collect. Even a few letters or phone calls to collect the not-yet-due debt might be viewed as a petty or trivial annoyance. Continuous unnecessary harassment over a nearly two-year period by a company whose main business is servicing such mortgages, however, might easily be viewed as extreme and outrageous conduct under the circumstances. It was a question for the trier of fact. See generally Moorhead v J C Penney Co, Inc, 555 SW2d 713, 717-718 (Tenn, 1977), a case involving repeated billings for a credit charge never incurred, and cases cited therein, and Venes v Professional Service Bureau, Inc, 353 NW2d 671, 674-675 (Minn App, 1984). See also, Anno: Recovery by debtor, under tort of intentional or reckless infliction of emotional distress, for damages resulting from debt collection methods, 87 ALR3d 201.
Intent or recklessness is suggested by the repetitive nature of the conduct even after plaintiffs requested that it stop or an accounting be made. In fact, as near as we can determine from informa tion submitted by defendants to the trial court, the letters continued after plaintiffs filed this suit. Plaintiffs’ depositions and complaint contain numerous allegations of humiliation, anger, and similar feelings, such as fear of losing their home or damage to their credit rating, and physical complaints resulting from this emotional distress. The emotional distress was apparently causally related in time to the letters and phone calls. We believe that issues of fact have been presented on all four elements upon which reasonable minds might differ. Accordingly, summary disposition was inappropriate as to plaintiffs’ intentional infliction of emotional distress claim.
We agree with the trial court’s grant of summary disposition on plaintiffs’ count alleging violation of the collection practices act, however. The act prohibits various acts by licensed collection agencies in the collection of claims or debts or communications with debtors. MCL 339.915 and 339.915a; MSA 18.425(915) and 18.425(915a). The act defines the claims and debts to which it applies:
As used in this article:
(a) "Claim” or "debt” means an obligation or alleged obligation for the payment of money or thing of value arising out of an expressed or implied agreement or contract for a purchase made primarily for personal, family, or household purposes. [MCL 339.901(a); MSA 18.425(901)(a). Emphasis added.]
The act took effect in 1980 and was amended in 1981. It has not been significantly interpreted by the courts of this state. In his deposition, however, Robert Margita testified that plaintiffs obtained the mortgage "to invest some money” by purchasing another home for rental. He characterized this as for a "business purpose” rather than family or personal use. Janet Margita indicated that the mortgage proceeds were used for a down payment on "income property.”
Without deciding whether the mortgage involved an "expressed or implied agreement or contract for a purchase” rather than a mere loan, we hold that the mortgage was not "made primarily for personal, family, or household purposes.” It was made exclusively for a business purpose, even if plaintiffs are not in the real estate investment business. As plaintiffs admit, the loan was secured for an investment. We believe that the Legislature excluded such an exclusive business purpose from the act’s coverage through its plain use of the language "primarily for personal, family, or household purposes.” The act is thus directed at the nature of the transaction, not the persons involved.
We accept, as plaintiffs argue on appeal, that plaintiffs intended to use the excess of any return on their investment "to offset their living expenses” and to "aid them in providing for their future.” Such personal, family, or household use of the proceeds of the investment is too remote to be included within the act’s protections. As indicated, the act does not cover investment transactions even if the proceeds of an investment are to be used for personal purposes. Otherwise, the act would apply to a professional real estate investor who uses the fruits of business dealings to support a family. Thus, the trial court did not err in granting summary disposition on this count.
Affirmed in part, reversed in part, and remanded for further proceedings.
It is not entirely clear what relationship defendants had after plaintiffs obtained the mortgage. It appears, however, that the majority of the mortgage collection efforts described in this opinion were carried out by Diamond Mortgage.
The trial court dismissed plaintiffs’ complaint in its entirety. On appeal, plaintiffs have not argued that the court erred in dismissing their third count, alleging negligence in maintaining plaintiffs’ mortgage account. We do not decide that question. | [
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Cynar, J.
Plaintiff appeals as of right from an order granting defendants’ motion for summary disposition on the ground that the statute of limitations barred plaintiff’s legal malpractice action. We reverse.
Plaintiff is a Michigan corporation. Defendant E. David Rollert is a practicing attorney in the State of Michigan and a partner in the law firm of Menmuir, Zimmerman, Rollert and Kuhn. Prior to October, 1979, Rollert had acted as legal counsel for plaintiff for a number of years. In October, 1979, while still acting as attorney for plaintiff, Rollert persuaded Robert Shaw, one of plaintiff’s three board members, to enter into a partnership with Rollert and two other individuals. Shaw agreed and became a partner in BTRS Properties Management & Leasing Company. When btrs needed additional funds, Rollert suggested that plaintiff lend money to btrs. Rollert assured plaintiff that this would be an advantageous business investment for plaintiff since btrs would pay a very high rate of return on plaintiff’s money. Plaintiff was not told by Rollert that this rate of interest exceeded the statutory usury limits. On October 22, 1979, btrs executed a demand promissory note to plaintiff for $37,000 with a seventeen percent interest rate. Rollert prepared and executed the note.
When plaintiff demanded payment on the note, btrs refused. On June 30, 1983, plaintiff retained attorney James Stephen, and Stephen filed suit against btrs for plaintiff on the note. Rollert answered the complaint, but in February, 1985, Rollert filed a motion to amend his answer to add the defense of usury. The motion was granted, and on February 6, 1985, Rollert filed his amended answer which contained the affirmative defense of usury.
On July 15, 1985, plaintiff filed the instant legal malpractice suit against Rollert and his law firm. Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7) on the ground that plaintiffs claim was barred by the statute of limitations, citing MCL 600.5805(4); MSA 27A.5805(4). Plaintiffs answer to the motion alleged that the applicable statute of limitations was MCL 600.5838(2); MSA 27A.5838(2) and that, since plaintiff filed the legal malpractice action only five months after defendant Rollert asserted the usury defense, plaintiffs suit was not barred. Attached to plaintiffs memorandum of law in opposition to defendants’ motion for summary disposition were affidavits of Mary K. Shaw, treasurer of plaintiff, Robert A. Shaw, president of plaintiff, and John R. Shaw, secretary of plaintiff, that they did not know that seventeen percent was usurious. In defendants’ brief in support of summary disposition, filed October 15, 1985, defendants noted that MCL 600.5805(4); MSA 27A.5805(4) provides that a person shall not bring a malpractice action unless it is brought within two years after the claim first "accrued,” and that MCL 600.5838(1); MSA 27A.5838(1) provides that a malpractice claim accrues at the time the defendant discontinues serving the plaintiff. Defendants noted that plaintiff did not dispute that neither Rollert nor his law firm provided legal services to plaintiff within two years before the malpractice suit was commenced. Defendants argued that the only way plaintiffs malpractice suit could succeed is if the "six month rule,” MCL 600.5838(2); MSA 27A.5838(2), applied. Defendants alleged that that subsection did not save plaintiff.
On October 25, 1985, at the hearing on the motion for summary disposition, defendants argued that plaintiff discovered or should have discovered the alleged malpractice by June 30, 1983, the date the original suit was filed. Plaintiff argued that it did not discover the malpractice until February 6, 1985, the day the usury affirmative defense was raised, as, until then, plaintiff suffered no harm. The trial court ruled that plaintiff in the instant case knew or should have known about the alleged malpractice on June 30, 1983, when it retained Stephen to file suit on the note. Since plaintiff did not file the instant suit within six months thereafter, nor within the two-year limit, plaintiff’s suit was barred. Summary judgment was granted to defendants.
On appeal, plaintiff argues that the trial court erred by granting defendants’ motion for summary disposition on the ground that plaintiff’s legal malpractice action was barred by the statute of limitations. We agree.
The alleged negligent act of Rollert occurred on October 22, 1979, the date he drafted the promissory note. The malpractice statute of limitations in effect on that date provided two years in which an action could be brought. MCL 500.5805(1) and (4); MSA 27A.5805(1) ánd (4). The statute is applicable to legal malpractice actions. Sam v Balardo, 411 Mich 405, 417; 308 NW2d 142 (1981). A separate statute explains when a malpractice action accrues, MCL 600.5838; MSA 27A.5838. That statute provides that an action accrues when the professional discontinues treating or otherwise serving the plaintiff. The second part of the statute provides that a plaintiff may also file suit within six months after a plaintiff discovered, or should have discovered, the existence of a claim. Dowker v Peacock, 152 Mich App 669, 671-672; 394 NW2d 65 (1986); Goodwin v Schulte, 115 Mich App 402, 409; 320 NW2d 391 (1982). Thus, an action for legal malpractice must be brought within two years after the date on which the last service is performed or six months after plaintiff discovers or should have discovered the claim, whichever is later.
In the instant case, both parties agree that plaintiff did not file suit within two years of the date Rollert last performed legal services for plaintiff; therefore, MCL 500.5838(1); MSA 27A.5838(1) does not apply. The only issue is whether the trial court could rule as a matter of law that plaintiff did not file its malpractice suit within six months of when plaintiff discovered or should have discovered that a malpractice claim existed.
Plaintiff claims that it did not discover that a malpractice claim existed until February 6, 1985, when Rollert was allowed to amend his answer to include the affirmative defense of usury. Plaintiff further alleges that, until Rollert asserted the affirmative defense of usury, plaintiff did not sustain any appreciable harm. Luick v Rademacher, 129 Mich App 803; 342 NW2d 617 (1983).
Defendants, on the other hand, argue that plaintiff suffered appreciable harm on October 22, 1979, when the note was drafted, * because plaintiffs absolute legal right to collect interest on the note became subject to an infirmity.
A review of the law of usury indicates that a usurious rate of interest does not make an instrument void. To the extent that the usurious interest and principal were fully paid, the borrower cannot recover. Wright v First National Bank of Monroe, 297 Mich 315, 328; 297 NW 505 (1941); Waldorf v Zinberg, 106 Mich App 159; 307 NW2d 749 (1981). The defense of usury is an affirmative defense which is waived if not raised. MCR 2.111(F)(3)(a).
We find that, until Rollert asserted the defense of usury, plaintiff did not have a malpractice cause of action because plaintiff was not damaged until btrs asserted the defense. Plaintiff’s suit would have been premature if plaintiff had not waited to see if the usury defense would be raised. This conclusion is supported by Biberstine v Wood-worth, 406 Mich 275; 278 NW2d 41 (1979).
In Biberstine, the plaintiff filed a legal malpractice action against the defendant because the defendant, the plaintiff’s attorney, failed to schedule a debt owed by the plaintiff in the plaintiff’s petition for bankruptcy. The Court held that the period of limitations started to run at the time the plaintiff was discharged in bankruptcy. Biberstine, supra, p 277. Until then, the defendant could have petitioned the bankruptcy court to amend the bankruptcy petition, and the plaintiff would not have had a claim for malpractice. Biberstine, supra, p 277. See also Dowker v Peacock, supra. Just as the bankruptcy discharge in Biberstine ended that plaintiff’s chance to avert the possible harm, so too the amendment adding the usury defense ended plaintiff’s chance to collect on the note and avoid the harm caused by the usurious rate. Plaintiff could not have discovered the malpractice claim until then.
Rollert was allowed to amend the btrs answer to assert the usury defense on February 6, 1985, thus plaintiff filed the instant suit within the six-month deadline by filing on July 15, 1985.
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Per Curiam.
On January 8, 1986, the Oakland Circuit Court modified the parties’ divorce judgment with respect to custody of their eleven-year-old son, Andrew. Custody was transferred to plaintiff. The order changing custody embodied a stipulation of the parties made in open court on November 8, 1985. Defendant Janet Napora objected to entry of the modified custody order, claiming: (1) that she had entered into the stipulation only as an interim solution to the parties’ dispute because she could not afford to travel from Texas to respond to defendant’s motion for a change in custody; (2) that a change in custody was not in Andrew’s best interests; and (3) that Texas was the proper forum for resolution of the parties’ dispute. The trial judge disregarded her objections without hearing them and concluded that the stipulation involved no fraud or coercion, that her financial situation did not amount to duress, and that the stipulation was therefore binding. Defendant appeals from the order as a matter of right. We reverse and remand to the circuit court for further proceedings.
The parties’ divorce judgment, dated February 12, 1980, granted defendant Janet Napora custody of the parties’ three children. Following a hearing on August 19, 1981, the court granted defendant’s motion to remove the children from the State of Michigan to Texas. Plaintiff was granted liberal visitation in Texas, as well as visitation in Michigan for all but four weeks of the children’s summer vacations. The summer visitations apparently took place without incident until the summer of 1985. Although the parties’ oldest child, sixteen-year-old Jennifer, did not visit during the summer of 1984 or 1985, her absence was apparently not the subject of any legal controversy. However, when Christine, the parties’ ten-year-old, did not accompany Andrew in the summer of 1985, an order to show cause was issued to defendant. It is unclear whether Christine ultimately came to visit as a result of this order or because she changed her mind and decided she wanted to visit her father.
In any event, on August 5, 1985, pláintiff Norman Napora moved for modification of the divorce judgment and requested that he be awarded custody of Andrew and Christine. Defendant filed a written response on August 10, 1985, which contained allegations that, if true, would call into question the propriety of changing the custody arrangement. In other words, the response indicated that a change in custody might not be in the children’s best interests.
An evidentiary hearing was scheduled for September 10, 1985, where proofs on the allegations in the plaintiffs motion and defendant’s response were to be presented. Prior to this date, the court ordered that Christine and Andrew be returned to Texas. Although somewhat unclear, it appears that the September 10 hearing never took place. However, on November 8, 1985, the parties en tered into the subject stipulation. This agreement provided that plaintiff would gain custody of Andrew, but did not contain an agreement as to any facts which might shed light on what disposition would be in Andrew’s best interests. A stipulation may serve this purpose where such facts are set out on its face and where the court has previously considered the issue of custody as well as having reports from the Friend of the Court. The subsequent order, incorporating the stipulation, was based solely on the stipulation. It was not based on any evidence or on any consideration of Andrew’s best interests.
The term "best interests of the child” is defined by MCL 722.23; MSA 25.312(3), as the sum total of the following factors to be considered, evaluated and determined by the court:
(a) The love, affection and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school and community record of the child.
(i) The reasonable preference of the child if the court deems the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) Any other factor considered by the court to be relevant to a particular child custody dispute.
A court may not modify or amend an order so as to change a child’s established custodial environment unless the court is presented with clear and convincing evidence that such a change is in the best interests of the child. MCL 722.27(c); MSA 25.312(7)(c). The best interest of the child is the controlling factor in any custody dispute. MCL 722.25; MSA 25.312(5). This Court will affirm a child custody disposition unless the trial court makes findings of fact against the great weight of the evidence, commits a palpable abuse of discretion, or commits a clear legal error on a major issue. MCL 722.28; MSA 25.312(8); Theroux v Doerr, 137 Mich App 147, 149; 357 NW2d 327 (1984).
In the present case, we find that the trial court erred by believing that it was required to uphold the stipulation of the parties. Although stipulations are favored by the judicial system and are generally upheld, Meyer v Rosenbaum, 71 Mich App 388, 393; 248 NW2d 558 (1976), a parent may not bargain away a child’s right by agreement with a former spouse. Sayre v Sayre, 129 Mich App 249, 252; 341 NW2d 491 (1983) (pertaining to child support as opposed to child custody). Despite any agreement which the parties may reach in regard to the custody of their child, where a custodial environment is found to exist physical custody should not be changed absent clear and convincing evidence that the change is in the best interests of the child. Moser v Moser, 130 Mich App 97; 343 NW2d 246 (1983). Accordingly, we find it necessary to remand to the trial court for consideration of whether an established custodial environment exists and, if so, whether changing custody would be in the best interest of Andrew as that term is defined by MCL 722.23; MSA 25.312(3).
Defendant also argues that the trial court erred in its disposition of her motion requesting that the court decline jurisdiction. The court refused to consider the matter until the prior order was complied with and custody of Andrew was transferred to plaintiff. Seconds later, the court indicated it was denying the motion. Although the basis for denial is unclear, based on Anderson v Anderson, 142 Mich App 837, 840; 371 NW2d 435 (1985), we find no error.
We reverse the decision of the trial court with respect to the change of Andrew’s custody and remand for proceedings consistent with this opinion. | [
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Carr, J.
The parties to this case were married in July, 1948, and separated on or about June 14, 1955. Suit for divorce was instituted by plaintiff on October 11th of the latter year. In her bill of complaint she charged defendant with extreme and repeated cruelty consisting of physical violence and attempts to compel plaintiff to place property that she had owned at the time of the marriage in the joint names of herself and defendant.
At the time of the marriage plaintiff was a widow, her first husband being Michael Tomchak, who died March 12, 1947. Plaintiff, had 3 children by the first marriage. The bill of complaint averred that she and her first husband had worked together for years, had constructed. a building, and had established therein a meat market and a place for the sale-of beer and wine. At the time of the death of Mr. Tomchak the parties held a tavern beer license, had accumulated some property, and were carrying ¡on a profitable business in the city of Albion. Following the death of the husband plaintiff converted the entire establishment into a beer tavern, discontinuing the operation of a grocery store and meat market previously operated. As administratrix of the estate plaintiff was permitted to continue operation of the tavern under the license previously granted. In the probate proceedings she was assigned the tavern business together with the equipment and stock of merchandise. Defendant was employed by her on a part-time basis, and following the marriage the license was transferred to the parties jointly. Thereafter they continued to carry on the business, apparently on a profitable basis, until the separation, following which defendant assumed charge of the operation.
On the trial in circuit court the proofs introduced by the respective parties related, in the main, to property matters. Plaintiff’s right to a decree of divorce was not contested. After listening to the testimony and the arguments of counsel; the trial judge, on July 10, 1956, filed a written opinion setting forth his findings as to the respective property interests of the parties. He found that plaintiff at the time of her marriage to defendant was possessed of certain property, including bank deposits, a postal savings certificate, government bonds, a house and lot, and a 1/3 interest’in the property wherein the tavern business was conducted, the remaining interests therein being vested in her children. Accordingly there was set over to her bank accounts- in the sum of $9,076.45, a postal savings certificate for $2,500, government bonds aggregating in value $20,528,- real estate that was her separate property, the household 'furniture owned by her at the time of her marriage to defendant, the sum of $3,627.35 received by her’ from rents and from interest, and ■the further sum’ of $2,000 which the trial judge-eon- eluded was the amount of her investment in the tavern. It was further found that defendant had invested in the business the sum of $1,500, and was, in consequence, entitled to the allowance thereof.
The value of property assets acquired during marriage, in which each of the parties had an interest and which the trial judge determined should be divided equally after allowance of the credits above mentioned, was found to be $30,442.60. Based on such finding, defendant was held to be entitled to 1/2 of said sum which, in addition to the amount that he had invested in the business, amounted to $16,721.30. A decree. was entered in accordance with the findings, adjudging that on the payment of said amount by plaintiff to defendant the interest of the latter in the property of the parties should be terminated and plaintiff vested with full and complete title thereto. The divorce was granted to plaintiff on the grounds alleged in her bill of complaint.
Following the entering of the decree counsel representing plaintiff filed a petition for rehearing, claiming that the trial judge was in error in certain specific findings with reference to property matters, and contending further that the attorney who represented plaintiff in the trial of the divorce action was ill at the time and incapable of properly conducting the case on behalf of his client. The petition was denied and plaintiff has appealed, asking, in the alternative, that this Court modify the decree of the trial court in accordance with plaintiff’s claims, or that the causé be remanded for a rehearing. The appeal presents substantially the same questions as were raised by counsel for plaintiff in her petition for a rehearing, and which the trial judge found to be without merit.
The attorney who started the divorce action for plaintiff and tried the case in her behalf had repre sexxted her in the probate proceedings involving the estate of Michael Tomchak. He had been engaged in practice in Calhonn county for many years.. It is conceded that he was not in good health at the time of the trial. It is quite possible that his physical condition was due, in part, to his age. The trial was held in May, 1956, and the attorney passed away the following November. In commenting on plaintiff’s petition for a rehearing the circuit judge stated that the attorney had presented his case well aixd in his usual manner.
Our examixxation of the record brings us to the conclusion that the claim now made on behalf of plaintiff that her attorney on the trial did not properly present her case is without merit. It is said that objections to testimony were not made when such action might have been proper, but our attention is not directed by counsel to any specific instances along this line. It is not apparent that the failure to intex-pose an objection to testimony that may have been open thereto resulted in prejudice to plaintiff’s cause. We find no factual basis for the claim that a rehearing should be granted on the ground that plaintiff’s attorney, due to his physical condition, did not propexdy represent her on the trial.
It is the claim of the plaintiff that the trial judge erred in not allowing plaintiff credit for the sum of $3,000 which she claims had been placed by her first husband in a safe in the tavern. With reference to this item plaintiff’s daughter testified that her father, Michael Tomchak, had given her the combination of the safe and had indicated that “in case of emergencies, there were things in the safe we could get and that would pull us through.” No claim is made that any specific reference was made to money in the safe. It appears from the testimony of the witness that bonds, insurance policies, and perhaps other valuable property or papers were kept in. the safe. Whether Michael Tomchak was referring, to securities that the parties had acquired or to cash is in doubt. The witness stated that defendant asked her for the combination to the safe, that she gave it to him, and that she then informed plaintiff of what she had done. Thereupon, as it is claimed, plaintiff went to the safe and, underneath a carpet on the bottom thereof, found money. Her testimony indicates that her daughter told her that there was $3,000. However, the testimony of the daughter is not consistent therewith, the latter stating that she did not count the money, that she saw a $500-dollar bill and a number of other bills.
The trial judge rejected the testimony with reference to plaintiff’s claim of finding $3,000 in the safe, and disallowed the item as a credit to her. Under the record we cannot say that he was in error. The issue involved the credibility of the witnesses, and the circuit judge had an opportunity to see them and hear them as they appeared on the witness stand. It does not appear that any examination of the safe was made in connection with the probate proceedings for the purpose of discovering what assets of the estate of Michael Tomchak might be contained therein. Neither is there any satisfactory basis in the record to support á finding that if the money was found in the safe, as claimed on behalf of plaintiff, it was used in the tavern business or otherwise than for plaintiff’s sole benefit.
As before noted, the decree of the trial court allowed plaintiff the sum of $2,000 as a credit representing her original investment in the tavern.. The finding in this regard was based on the inventory filed by plaintiff as administratrix of the estate of Michael Tomchak, which listed the fixtures- and stock in trade at the time at $2,000. Apparently the business as such was not valued at all. It was, however, assigned to plaintiff by the probate judge with the stock in trade, furniture and fixtures, such assignment being “in lieu of all claims and demands in or upon the personal estate.” It was plaintiff’s claim •on the trial that prior to her marriage to defendant .she had remodeled the building in which the business was being conducted, had acquired new furniture and other equipment, and that in view of the testi.mony in this respect the valuation of her interest in the tavern business and equipment was too low. •Obviously the furniture in the tavern and other personalty therein cannot be valued on the basis of the total cost incurred by plaintiff in remodeling the building and replacing some equipment. The .amount expended for the latter purpose was not established on the trial. On the record before us it appears that the trial judge relied on the only •definite and tangible proof that was introduced. We •cannot find satisfactory evidence on which to base a finding that a different valuation should have been fixed.
Complaint is also made that the trial judge was in error in fixing the value of the tavern business and •equipment at the time of the divorce proceedings at the sum of $12,000. A real-estate broker of the city of Albion, familiar with property values therein, was produced as a witness on behalf of defendant, testifying to his familiarity with the tavern in question, and giving his opinion as to its value, which he placed at $12,000. It is urged on behalf of plaintiff that the testimony was based on a belief on the part of the witness that the net profit of the tavern was approximately $8,000 per year. It is claimed that this was not correct and that, in fact, the profit for the year 1955 was $6,529.83, and that, on the basis suggested by the witness that the value for purposes of sale would ordinarily be fixed at 1-1/2 times the annual net profit, the valuation should have been determined a lesser amount than as stated in the opinion of the trial judge. However, the witness further indicated that in fixing the valuation he took into consideration the fact that a tavern located on the same street as the establishment here in question, and within a short distance, had sold for $13,000, and that he did not consider there was any material difference between said taverns. It further appears that he took into account the license and the personal property in the tavern in fixing the ■valuation indicated. It may not he said, in consequence, that the testimony of the real-estate broker-rested wholly on any formula. No other proofs were introduced to fix the valuation of the tavern as of the time of the trial. There is no basis for a modification of the decree with respect to this item.
On behalf of appellant other claims of error in the findings of the trial judge are presented. In each instance it appears that the judge reached his conclusion on the basis of proofs before him. "We find no abuse of discretion in the division of the property interests of the parties to the cause. On the record in the case, the decree entered was not inequitable.
Affirmed, with costs to defendant.
Dethmers, O. J., and Kelly, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred. | [
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Carr, J.
The plaintiff in this case is the owner of a parcel of land in Wyoming township, Kent county, lying immediately west of, and contiguous to, property owned by defendants Paul E. Plummer, Sr., and A. Marie Plummer. Defendants have constructed a supermarket on their lot which plaintiff claims interferes with, and prevents the enjoyment of, an ease- meat that she asserts over the south 33 feet of said defendants’ land. It is conceded that the building in question constitutes such interference if plaintiff is entitled to the rights alleged in her hill of complaint.
The material facts are not in dispute. In 1921 Victor J. Moliere acquired from the government of the United States title to a tract of land in Kent county. We are concerned in this case with a portion of such property, 366 feet north and south by approximately 1,100 feet east and west, the east line being indicated as the center of Clyde Park avenue. In 1925 Moliere conveyed the east 240 feet of the parcel indicated to the Guarantee Bond & Mortgage Company of Grand Rapids. The interpretation of this conveyance is the first question for consideration here. After describing the property as being a parcel 240 feet east and west by 366 feet north and south, the east and west line to be measured from the center of Clyde Park avenue, the following provision was inserted:
“Reserving from the above description the north 33 feet and the south 33 feet for highway purposes only.”
Subsequent conveyances contained the same language as above set forth from the 1925 conveyance, except that the deed to Mr. and Mrs. Plummer of the south 167 feet of said lot recited that the property was subject to “easements of record.” As before indicated, the specific question at issue here is plaintiff’s right to an easement over the south 33 feet of the land on which defendants have constructed their store building.
The land now owned by plaintiff was first conveyed by Moliere on July 17, 1930. Following the description of the property, the following was added:
“Also granting a joint right-of-way over a strip of land 33 feet wide north and south lying immediately east of the above described property, the south line of which strip shall be an extension of the south line of the property hereinabove described, and such strip shall extend to Clyde Park avenue.”
Obviously the grantor sought to create, as appurtenant to the grant to plaintiff’s predecessor in the chain of title, an easement over the south 33-foot strip referred to in the 1925 conveyance to the Guarantee Bond & Mortgage Company. In the first 2 conveyances following the 1930 conveyance by Moliere the language of his deed was recited. The subsequent conveyance to plaintiff’s immediate grantor, and his deed to her in 1954, contained merely the words “subject to easements.”
On the hearing of the cause in circuit court it was claimed on behalf of plaintiff that Moliere by the provisions of the 1925 conveyance of the lot abutting on Clyde Park avenue created an easement over the south 33 feet thereof for the benefit of the land lying-west of the parcel conveyed, and contiguous thereto, which Moliere still owned. Defendants contended that the language employed by said grantor did not indicate an intention to reserve an easement for the benefit of his contiguous property but, rather, constituted an offer to dedicate a right-of-way over the strip of land in question for a public highway. The trial judge agreed with defendants’ construction of the language of the conveyance, holding that the words “for highway purposes only” did not reserve to the grantor any right in the property which he could convey to another, but “was an attempt merely to reserve to the public right to establish a public highway over the south 33 feet of the land in question,” if such was deemed desirable. Accordingly a decree was entered denying the relief sought and dismissing the bill of complaint. Plaintiff has appealed.
It will be noted that Moliere in the 1925 conveyance of that portion of the property here involved that fronted on Clyde Park avenue in terms reserved from the conveyance the south 33 feet, as well as the north 33 feet, but “for highway purposes only.” We recognize the fact that the exact term used is not necessarily controlling. It is a matter of common knowledge that the terms “excepting” and “reserving” are used interchangeably. Such language must be interpreted to carry out the intention of the grantor, if it can be ascertained. Martin v. Cook, 102 Mich 267; Peck v. McClelland, 247 Mich 369; 26 CJS, Deeds, § 137, p 997. If in the instant case Moliere had intended to except from his conveyance the north and south 33-foot strips, no reason is apparent why he included them in the property described as the subject matter of the conveyance. It may not be assumed, in other words, that if he intended to retain in himself absolute ownership of said strips he would have first included them simply for the purpose of taking them out of his conveyance. Elliott v. Small, 35 Minn 396 (29 NW 158, 59 Am Rep 329). Furthermore, the language of a conveyance must under the general rule be construed, if ambiguous, against the grantor. Bolio v. Marvin, 130 Mich 82; Ultz v. Upham, 177 Mich 351, 357. The fact that the expressed reservation was for highway purposes only is significant as indicating the intention of the grantor. The language suggests that he had in mind establishing an easement for either public or private use. The deed may not properly he construed as creating an exception to the property described as conveyed to the grantee.
This brings us to the question whether the language in Mollere’s 1925 deed may properly be construed as an offer to dedicate rights-of-way for pub- lie roads. In considering this possibility it is somewhat significant that no reference was made to Wyoming township or to Kent county. There is no indication in the instrument as to the time or manner of acceptance of the offer, if such it was, or as .to the highway authorities granted the right of acceptance. No claim is made that there was an acceptance, or attempted acceptance, express or implied. That, acceptance is essential has been repeat- ' edly held. The general rule was expressed in Chene v. City of Detroit, 262 Mich 253, 258, as follows:
“In order to create a common-law dedication, there must be, first, an intention on the part of the owner . to dedicate lands or premises to a public use; and, , second, such dedication must be accepted by the .public authorities.”
Of like-import are Reno v. Johnson, 224 Mich 14; Township of Pontiac v. Featherstone, 319 Mich 382, 389; Whitehead & Matheson Co., Ltd., v. Jensen, 203 Wis 12 (233 NW 546); 26 CJS, p 459 et seq.; 16 Am Jur, p 377 et seq.
In the instant case not only did the grantor fail to clearly express an intention to make a specific offer of dedication for highway purposes but the facts are inconsistent with the probability of such an intent. The north and south 33-foot strips reserved for highway purposes extended, as appears from the conveyance in question and also from exhibits in the case, 190 feet from the west side of Clyde Park.avenue,■ ending at land the ownership of which Moliere retained. It is scarcely conceivable that he would have made any such offer, or that he would have expected an acceptance thereof from highway authorities. It does not appear that the offer to dedicate, if so intended by Moliere, was communicated to highway authorities of either township or county. If the grantor in the conveyance had in mind to dedicate rights-of-way for public roads, it is reasonable to believe that he would have included in the offer proper reference to easements in the contiguous property that he owned. We are not in accord with the claim of defendants that Moliere, by the conveyance in question here, offered to dedicate rights-of-way over these 33-foot strips for the establishment of public roads limited as above indicated.
The logical interpretation of the language of the deed in question is that Moliere intended a reservation over the north and south 33-foot strips of the property conveyed to the Guarantee Bond & Mortgage Company. It may not be sustained as a reservation for the benefit of persons or property other than the grantor or the property to which he retained title. An attempted reservation for the benéfit of a stranger to the conveyance is ineffective. Martin v. Cook, supra; Peck v. McClelland, supra. Under the circumstances it was quite natural that the grantor should have reserved rights-of-way for the benefit of the property lying west of, and contiguous to, the parcel conveyed. It may be assumed that he had in mind the desirability of having proper means of access to Clyde Park avenue. Obviously, without assured means of ingress and egress the value of the retained property would have been materially impaired. Construing the language of the conveyance in the light of the circumstances existing at the time, the conclusion that Moliere intended to create an easement for the benefit of his retained property, in order that access might be afforded to a legally established public highway, logically follows. At the time he executed the conveyance, in 1930, of the property that plaintiff now owns, he had an easement over the south 33 feet of the lot previously conveyed to the Guarantee Bond & Mortgage Company.' Such reserved easement was appurtenant to the land deeded to plaintiff’s predeces sor in her chain of title. It was not lost by mere nonuser. In consequence, plaintiff is entitled to seek equitable relief based on defendants’ interference with her property right.
In her bill of complaint plaintiff asks that defendants be required by writ of injunction to remove their building from the 33-foot strip. The record indicates that the cost of the supermarket was in excess of $50,000. Obviously, compelling the tearing down of the structure or a portion thereof would entail a substantial loss to defendants. A mandatory injunction of the character requested would scarcely be in accord with settled principles of equity, in view of the facts in the case.
Plaintiff first acquired her property in 1949 under land contract obligating her to pay the sum of $800. Pursuant to said contract she received a deed in 1954. No attempt was made by her to call attention in any way to the existence of the easement, and the land now occupied by defendants was covered with shrubs and small trees.. The right-of-way claimed by plaintiff has never been used, either by her or by any predecessor in her chain of title. The construction of the supermarket was begun on or about the 5th of July, 1955. On September 26th following, plaintiff wrote a letter to defendants suggesting that a part of their building might be on her “south right-of-way” and stating, if such was the fact, that the building would have to be removed. On receipt of the letter defendants ceased further building operations for a few days and then, under advice of their attorney, proceeded to complete the building. The present suit was instituted November 21, 1956.. Presumably defendants’ attorney, after investigating the matter, came to the conclusion that plaintiff did not have an easement over the property on which the supermarket was located. There is nothing in the record to indicate that the defendants acted wilfully or for the purpose of injuring plaintiff. As the situation is presented to us we think that equity will be done if plaintiff is recompensed for such damages as have resulted to her property because of defendants’ interference with the easement in question. Equitable principles analogous to those recognized and approved in Rzeppa v. Seymour, 230 Mich 439; and Hardy v. Burroughs, 251 Mich 578, may properly be applied here. See, also, Seifert v. Keating, 344 Mich 456; and Herpolsheimer v. A. B. Herpolsheimer Realty Company, 344 Mich 657. In granting equitable relief the Court is not bound by the prayer therefor. It may be noted in the instant case, however, that plaintiff asked for damages and also for such relief “as seems just and equitable to this Court.”
In view of the fact that defendants have deprived plaintiff of the easement in question, as the proofs indicate, she should be given an election to take, in lieu of damages, such sum as the trial court may determine to be the fair value of her property with the appurtenant easement, payment of such sum to be conditioned on her delivering to defendants a proper conveyance of the property deeded to her in 1954 in accordance with the land contract. The cause is remanded to the circuit court for the taking of proofs as to such damages, or the value of the property, as plaintiff may elect prior to the receiving of testimony. The decree dismissing the bill of complaint is set aside and, on the determination of the question of damages, or property value, as the case may be, a decree may enter in accordance with such finding and this opinion. Plaintiff may have costs on this appeal.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Yoelker, and Kavanagh, JJ., concurred. | [
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Voelker, J.
This appeal grows out of a driver-pedestrian. accident on a public street not at an intersection during which the plaintiff pedestrian was grievously injured. At the close of the plaintiff’s proofs the defendant moved for a directed verdict, which was granted and this appeal has resulted.
At the trial the plaintiff was unable to testify to the circumstances surrounding the accident, claiming that as a result of her injuries she had suffered from amnesia, or loss of memory, a lapse which she alleged and testified covered an interval immediately preceding the accident and lasting until she woke up in the hospital the next day, Christmas. She testified that she was 51 years of age; that she had worked around her home'that day; that she and her husband had expected company that night and she had made spaghetti sauce and 3 kinds of candy; that her husband got home from work about 4:30 that afternoon; that they went shopping for groceries and snacks for their expected company that night and returned home shortly after 5; that they relaxed and read the newspapers till about 20 minutes to 6 when they left to walk to the Moose Lodge (a block and a half away), arriving shortly before 6, where, as planned, they met their son and some friends; that during her stay at the lodge hall she drank 2 whiskey highballs in soda; that when she and her husband left at about 6:50 her son presented her with a pint of whiskey, which she carried with her; that she and her husband parted at a drugstore and she went on ahead on her way. home to prepare their supper.
She further testified that she remembered nothing after passing the Odd Fellows Hall (near the scene of the accident and somewhat north of a point kitty corner from her apartment across the street). “My memory is cut off at the point where I remember walking past the Odd Fellows hall,” she testified. “I have no further recollection.”
An expert witness, Dr. Clarence W. Muelilberger, chemist and toxicologist for the Michigan department of health, testified that he had analyzed a blood sample taken from the defendant and found that it contained .17% alcohol by weight. He further testified that in his opinion one whose blood sample showed .15% alcohol or more was “definitely under the influence.” He further testified that these tests and figures were recognized among toxicologists and medical science in general, being accepted among others by the American Medical Association, the National Safety Council and the American Association of Chiefs of Police.
The same police officer who took the blood sample from defendant testified at the trial that he had first refreshed his recollection from a police report he had made the night of the accident and that he had discussed the accident with the defendant at the scene; that “He stated he hadn’t seen her until the' accident, until the collision;” that he, the officer, had observed that there had been snow and the streets were slushy; that the visibility was very poor; that it was á hazy and misty night with some fog combined with mist. On the question of defendant’s drinking he testified as follows:
“I determined that he had been drinking’ and I asked and he told me he had had 4 cocktails of some nature or some combination. I also concluded he had been drinking as his eyes were bloodshot and watery. He talked not real clear and his words were slightly slurred. He was, of course, very excited. The odor of alcoholic beverage was very strong on his breath. I don’t recall if there were any lights on Mr. Bashore’s car. I asked him if he would permit a blood alcohol test taken and he requested that ,we do so.”
. The defendant was called for cross-examination under the statute. He testified, among other things, that he had had a few drinks earlier that afternoon, possibly 4; that the weather was cold and there was snow and slush on the streets; that about 7 p.m. as he proceeded northerly up the street where the accident occurred his lights were on dim; that he did not feel the drinks he had taken except that he felt warmer; that he didn’t recall whether his windshield wipers were on; that his lights showed up “good” and that he could see about 50 feet ahead; that he did not see the plaintiff as he crossed the street intersection some 50 feet below the accident; that he did not recall looking at his speedometer.
He further testified as follows:
“I saw Mrs. Shaw almost the same time as the impact but I did see Mrs. Shaw to the right of my car and there was no chance to stop. The accident followed almost immediately after my seeing Mrs. Shaw. I had a horn on my ear and it was in working order but had no opportunity to blow my horn. I made an effort to put on my brakes but it wasn’t in time. I knew I hit somebody and it was then I started to apply my brakes. My car rolled about 40 or 50 feet after I applied my brakes.”
He further testified that at the impact he saw the plaintiff “flying through the air” over the right side of his car, over the right hood by the sun visor; that his windshield was not fogged over; that his vision was normal; that after he stopped and went back he found the body of the plaintiff “possibly 8 or 9 feet from the curb;” and, categorically, that he was driving 20 miles per hour—this despite his previous testimony that he did not recall watching his speedometer.
Upon examination by bis own counsel he testified that when he first noticed the pedestrian she was moving from the east (direction of curbing) approximately 4 to 6 feet ahead of the car, and that he thought 1 step would carry her right directly to the right of his car, in front of it. “She was moving and she was approximately 1 step to the right of the extreme right side of my car.” On redirect examination he denied that he was drunk.
Plaintiff’s doctor described her condition and state when he first saw her in the hospital as follows:
“She had numerous contusions, very large laceration of the left leg and a compound fracture of the left tibia and fibula. The bone in her left leg stuck out through the skin. She was in considerable shock. I don’t know how many fractures there were but there were several pieces. She had fractures to both sides of her pelvis which was discerned by a later N-ray study. I administered plasma and cleaned out the wound, put the fractures together and closed up the wound.”
For a time amputation was seriously considered. She did not leave the hospital until the middle of the following February, during which time she had various operations, skin grafts and was in a pelvic cast. She had to return to the hospital for additional therapy under anesthesia. Her cast was not removed until April. The record discloses that apparently the only conversation she ever had with the police officer took place in the hospital the night of the accident. This last assumes some importance in view of later developments in this case, presently discussed.
As noted, at the close of plaintiff’s proofs, defendant moved for and the court granted a motion for a directed verdict. Among other things the court then said: “The burden was on plaintiff to prove not only that the defendant driver was negligent but that she herself was free from contributory negligence. The physical facts show that she stepped directly into the path of this car.” In reaching this conclusion the court appears to depend largely upon the testimony of officer Bell that plaintiff told him the same night after the accident while in the hospital that “Mrs. Shaw told me in her hospital room that she did not see the car.” (The court’s opinion neglects to mention that this same officer also testified that the defendant told him he did not see the plaintiff until the impact.)
To ground the decision thus is to accept the testimony proffered by and on behalf of plaintiff in its worst not its best light. It is to utterly ignore the plaintiff’s own testimony that she could not remember the circumstances of the accident. Manifestly if she was unable to remember the accident she was correct when and if she told the police officer that she didn’t see the car. This record also shows that she was in a state of pain and “considerable shock” upon her arrival at the hospital and when such conversation took place.
The court’s view of the defendant’s testimony is considerably more charitable:
“The testimony * * * of Mr. Bashore * * * was that * * * she stepped directly into the path of his automobile. * * *
“The testimony of the only other witness, who is the driver, and he is a competent witness to testify, was that she stepped directly into the path of his car.
“The physical facts are such as would make this court find her guilty of contributory negligence; in other words she was not keeping a proper lookout for traffic when she attempted to cross that street, so I am going to order you to remain in your seats and give a verdict for the defendant of no cause for action.”
While it is perhaps not strictly necessary to our decision, we think it is not without some pertinence to quote what the court had to say in his ruling on the motion about the drinking of the defendant, of whose testimony it seemed disposed to take such a favorable view:
“The officer also testified that the man admitted having some drinks but after they took the blood test and examined and questioned him at the police station he was allowed to go home.”
Presumably this charitable action by the officer late on Christmas Eve to a married man with a family magically dissipated and held for naught the entire testimony of the police officer and also the lengthy testimony of Dr. Muehlberger to the effect that a man whose blood sample showed .17% alcohol by weight was “definitely intoxicated.”
This is “favorable view” with a vengeance, but solely from the defendant’s side. If the plaintiff had been killed, as she so nearly was, apparently the defendant could well have been successfully prosecuted for manslaughter (despite the added burden of proof) under our holding and the plain language we employed in People v. Townsend, 214 Mich 267, 272 (16 ALR 902) — assuming, perhaps hopefully, that in the meantime we have not swept that case into the dustbin.
Though the case was not cited by the court, its decision based on these grounds is really our hardy old friend Schillinger (Schillinger v. Wyman, 331 Mich 160), .this time travelling incognito and with an added new twist. Once again what someone allegedly told someone is seized upon and invoked and given the worst possible construction — from the plaintiff’s side, that is — but this time it is the testi mony of an intoxicated defendant that is seized upon as the final clincher that slays the presumption of due care and would banish this broken plaintiff forever from having her jury day in court. It would perhaps be enough to reverse this case simply on the correct application of favorable view, and stop there, but 8 chilling er has enjoyed its long reign of triumph and has waited a long time for its comeuppance, and we shall have our say.
The dubious and elusive doctrine of S dulling er has already been eloquently appraised, criticized and put in its proper perspective by Justices Black and Smith in their opinions in Hett v. Duffy, 346 Mich 456, 462, 472. This writer adopts those opinions in that case so far as they apply to our situation. As pointed out by Mr. Justice Smith at page 473, the doctrine that “When there is an eyewitness to an accident the issue of due care rests upon proof and not upon presumption” was a dictum, however sound, not necessary to the decision of the case in Foote v. Huelster, 272 Mich 194 at 198. From that passing dictum, correct as it may be in cases where it may properly apply, there has sprung up in this State the weird legal progeny now confronting us, a sleight-of-hand development which perhaps (up to this case) reached its finest flower in S chilling er. It now appears that a trial court would further extend recent legal perversions of that doctrine and now accept the conflicting testimony of an intoxicated defendant who, to put the best version on his inconsistent accounts, caught but a fleeting glimpse of the doomed plaintiff split seconds before his car struck her and she “flew through the air.”
We will have none of Schillinger much less any such bold extensions of its bleak doctrine. As Mr. Justice Black so well said at page 466 in Hett:
“This Court in recent years has gone a long way toward final destruction of the presumption of due care. In Schillinger we went so far as to manufacture sua sponte an ‘eyewitness’ out of pure rumor made into hearsay. Upon that tragic novelty, Schillinger until it is retired has eliminated the presumption of due care from all pedestrian death cases where the Court chooses to presume, or infer from hearsay, that the surviving driver ‘saw decedent at all before the accident.’ The driver may have seen nothing of evidentiary value tending to prove or disprove contributory negligence of him whose mouth is closed in death. The Court knows naught of that without the testimony of such driver. It simply presumes that the driver may have seen something and, on that homemade ipse dixit, the time-tried presumption of due care is ousted from the case as. a matter of law. A new presumption has thus crept without honors into Michigan pedestrian law—a presumption of existence of credible eyewitness testimony to negligent acts or omissions of the decedent—a presumption that annihilates another presumption, that of due care, as a matter of law.”
Justice Black gathers up the various counts of his indictment at page 469 and has these ringing words to say:
“Until we modify Schillinger to Gillett and Petersen* the representatives of deceased pedestrians in cases where there are no real eyewitnesses to the decedent’s conduct will be denied right to jury verdict if they do not call the surviving driver to the stand and correspondingly will be denied that right if they do call him. The driver thus and regardless of his impeachment or the inconclusive nature of his testimony will continue to enjoy shameful advantage over the dependents of his victim—an advantage of even greater magnitude than he obtained over that victim when the unequal battle of steel against flesh was resolved against the latter.”
This curious judicial passion so evident in some quarters to resolve all possible doubts against the plaintiff in these types of cases, upon motion for peremptory verdict, again comes under searching scrutiny by Mr. Justice Black in his recent opinion in Weller v. Mancha, 351 Mich 50, which we need not repeat. This modern tendency to take negligence cases away from juries at every opportunity is all the more curious in view of our often-announced rule that, upon such motions, all facts and circumstances and reasonable inferences must be viewed in the light most favorable to the plaintiff. See Weisenberg v. Village of Beulah, 352 Mich 172, citing cases.
What we seek, then, is not to make new law in this realm, but to return to the application of time-honored rules and authorities. We seek to serve notice that we ourselves take an unfavorable view of this developing new doctrine of “unfavorable view.” We also seek to smite this growing tendency to take cases away from juries on capricious and arbitrary grounds,’ of which the trial court’s action in this case perhaps stands as a classic example. ,
Other questions discussed in the briefs are not apt to arise on retrial in view of our determination that the question of contributory negligence is for a jury. Further, and in view of such determination, it is probable that plaintiff’s theory of recovery will be voluntarily limited to the usual questions of negligence and freedom from contributory negligence. In these circumstances we decline to review and decide such additional questions.
The case is reversed and remanded for trial, with costs to plaintiff.
Smith, Black, and Edwards, JJ., concurred with VoELKER, J.
See CL 1948, § 617.66 (Stat Ann § 27.915).—Repokeeb.
Reference is to taking a sample for the blood test. At that time the test itself was not completed nor the results known.
Gillett v. Michigan United Traction Company, 205 Mich 410; Petersen v. Lundin, 236 Mich 590.—Reporter. | [
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Carr, J.
This case has resulted from a traffic accident occurring in the city of Dearborn on the 17th of April, 1955, at approximately 1 o’clock in the morning. On the occasion in question a member of the police department of the city was driving an automobile owned by plaintiff in a northerly direction on Miller road. At the intersection of. said highway with Eagle street, or Eagle Pass, the police car collided with an automobile operated by the defendant. Claiming that the latter was at fault in the matter, an action was brought in the municipal court of the city for damages, recovery of the alleged amount thereof in excess of $1,000 being waived. The declaration filed alleged negligence on the part of the defendant in making a left turn -without proper observations, and in proceeding against a red light. To the declaration defendant filed a plea of the general issue, reserving therein the right to file at a later date a detailed answer to plaintiff’s pleading. It does not appear from the record, however, that this was done. The trial in the municipal court resulted in a judgment for plaintiff, from which defendant appealed.
In the circuit court the parties to the cause waived the right to a jury trial, and the matter was heard before the circuit judge. In support of its claim plaintiff introduced the testimony of the police officer, Harold Monberg, who was driving the automobile, and also produced as a witness another officer who was riding in the car at the time of the accident. At the conclusion of plaintiff’s testimony counsel for defendant made a motion for judgment “on the basis of the plaintiff’s proofs.” In support of said motion it was claimed specifically that Officer Monberg, in the operation of plaintiff’s vehicle, failed to make proper observations as he entered the intersection, and'prior thereto, that had he exercised due care in such respect he would have been in position to avoid the accident, and that, in consequence, on the basis of the proofs submitted plaintiff was not entitled to recover. The motion was granted for the reason asserted by defendant’s counsel in his motion, and for the further reason that plaintiff had not introduced proof as to the amount of damages sustained by it. Judgment in defendant’s favor was entered accordingly, and plaintiff has appealed.
At the time of the accident Miller road was a divided north and south thoroughfare, with 3 lanes for northbound traffic and like provision for southbound traffic. North and south of Eagle Pass the 2 sections of the highway were separated by a so-called island, approximately 8 feet in width. In the center of said intersection was a concrete structure on which was located a traffic light. It may be noted in this connection that the intersection was, at the time of the occurrence in question, protected by 3 signal lights designed to regulate traffic passing through it.
Plaintiff’s proofs indicated that the police car approached the intersection at a rate of speed of approximately 35 miles per hour, that Officer Monberg did not decrease said rate as he entered and attempted to pass through the intersection, and that he did not see defendant’s car until it appeared directly in front of him in the middle lane for northbound traffic. In view of the manner of disposition of the case the testimony of Officer Monberg becomes of controlling significance. After testifying that as he approached the intersection he noted that the traffic light was red against northbound traffic on Miller road, and that 3 cars were standing at the intersection waiting for the signal to change, the following testimony indicates the situation that the witness claimed existed immediately prior to and at the time of the collision between the cars:
“Q. What did you do when you saw these 3 cars ■waiting for a red light, officer, in front of you, that is?
“A. i think, to make it simple, I was about 150 feet behind the intersection. The 3 cars were lined up, stopped for the red light. The light turned green and these 3 cars proceeded on across the intersection on the green light, and I continued my course, going north.
“Q. Bid these cars start up and proceed through the intersection before you arrived at the intersection?
“A. Yes.
“Q. So then we now have your car here, with a light green, and 3 cars clear ahead of you. They have gone on beyond you, is that right?
“A. Yes.
“Q. Nov/, tell us what happened as you arrived at the intersection?
“A. As I entered the intersection on the green light, a car coming south on Miller road made a fast turn in front of me and a collision occurred.”
Following an explanation by the witness as to where the cars were at the time of the collision, he continued his testimony as follows:
“The Court: The front portion of the plaintiff’s ear appears to strike the car driven by the defendant, at the right rear wheel, is that right?
“A. Yes.
“Mr. Campbell: That is correct.
“Q. Is that where you remember striking the other car?
“A. Approximately there, between the center post and the rear fender there, on the pink car.
“Q. Between the center post and the rear fender ■■of the pink car?
“A. Yes. That is approximately the way it happened, right here, just about so, and then from the collision;our car—
“Q. Never mind that at the moment. I just want you to show us, as best you remember, where the point of impact was, and if you don’t remember, tell us.
“A. That is approximately it.
“Q. Now7, just before this collision occurred, I believe you testified that the light was green, and you were about here. Now, between the time that — from here to the point where the 2 cars collided, did you at any time see the other car, officer?.
“A. No. All I saw from the other car was a blue flash in front of the scout car.
“Q. You say an instant, is that right?
“A. Yes, just — just an instant. (Witness snaps fingers.)
“Q. Now, after this accident, did you have any discussion with the man who w7as driving the other car?
“A. Yes.
“Q. Is he here in court today?
“A. Yes, he is.
“Q. Where is he?
“A. The gentleman in the checkerboard sport jacket.
“Mr. Campbell: Referring to the defendant, Eli Bacila.
“Mr. Garlow: Yes.
“Q. Did you discuss how7 this accident happened, with Mr. Bacila, or did he discuss it w7ith you?
“A. I asked him how come he run the red light. He said he thought he had enough time.”
The following testimony on cross-examination further tends to explain the situation at the time of the accident, and the basis for the action of the circuit judge in granting defendant’s motion at the conclusion of the proofs:
“Q. Now, Officer Monberg, when you saw the 3 cars ahead of you on Miller, at the' intersection, I believe you testified at that time you were 150 feet back from the intersection, is that right?
“A. Approximately 150 feet back from tbe intersection.
“Q. What was your speed at that time?
“A. Approximately 35 miles an hour.
“Q. What is the speed limit on Miller?
*‘A. 35 miles an hour.
“Q. And at about that time the light turned green and the 3 cars ahead of you proceeded, is that correct?
“A. Yes, sir.
“Q. Were you in the center of the northbound lanes of travel of Miller at that time?
“A. Yes, I was in the center lane.
“Q. You didn’t change lane.s?
“A. I didn’t change lanes.
“Q. What was your speed as you entered the intersection of Miller and Eagle Pass?
“A. Approximately 35 miles an hour.
“Q. Still 35?
“A. Yes.
“Q. And what was the color of the light for northbound and southbound Miller traffic?
“A. It was green.
“Q. Now, when was the first time — strike that. You stated'that you saw a blue flash, as the other car, is that correct?
“A. Yes, the flash of the color.
“Q. Was that the first time that you had seen the other car ?
“A. That is the first time I saw the other car.
“Q. And you were already into the intersection at that time?
“A. I was in the intersection.
“Q. And when you saw the blue flash, what did you do?
“A. As soon as I saw the flash, there was a collision.
“Q. You didn’t put on your brakes?
“A. I didn’t have time.
“Q. You didn’t take your foot off: the accelerator?
“A. Oh, I believe I took my foot off the accelerator, but I don’t believe there was any braking.
“Q. Did you make any attempt to turn right or left to avoid the collision?
“A. I don’t really remember if I did or not, because as soon as the collision occurred, we were turned around, and went backwards into a post on the opposite corner.
“Q. Now, the other car, which you have identified as a blue flash, wa<s it in the position as yon have already indicated on the board,- at the time that you saw it?
“A. Just as we — this car came around here. My lights were on, of course, and all I saw was the flash of the car, the blue flash, the color of the car, coming through the intersection. Just at the instant I saw the color of the car, the collision occurred.
“The Court: "When you say a blue flash, it wasn’t a flash, was it?
“A. Well, it was the color of the other man’s automobile.
“The Court: What you saw, then, was a blue automobile in front of you?
“A. Yes. The color — the color across the headlights of my car. * * *
“Q. And the blue car was moving from west to east, I think you said?
“A. The car was moving across the intersection, on a left turn.
“Q. I wonder if you could tell us how far in front of your scout car that blue car was when you first saw it?
“A. I would say approximately 10 to 15 feet.
“Q. So of your own knowledge and your own observations, you don’t know that the blue car had been traveling south on Miller and made a left turn in front of you?
“A. I didn’t see the car coming, south on Miller, no.
“Q. That is your deduction, not your observation, is that right?
“A. That is my — yes, my deduction.”
The testimony of the other police officer indicated that he was not concerning himself with the operation of the police car. Apparently his observations were general in nature, and immediately before the collision occurred he had been looking to the east. He did not notice defendant’s car until it was immediately in front of plaintiff’s vehicle and proceediiig in an easterly direction. He was unable to testify as to the speed of either vehicle.
In stressing their claim as to defendant’s conduct, counsel for appellant call attention to CLS 1956, § 257.650 (Stat Ann 1952 Rev § 9.2350), which reads-as follows:
“The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this chapter, may make such left turn and the drivers of all other vehicles 'approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn: Provided, That at an intersection at which a traffic signal is located, a driver intending to make a left turn shall permit vehicles bound straight through in the opposite-direction which are awaiting a go signal to pass through the intersection before making the turn.”
The interpretation of the above section was considered in Neander v. Clampett, 344 Mich 292, 295, where it was said:
“Next, plaintiff says that the court erred in charging that after defendant entered the intersection he was required to yield to vehicles approach ing from the opposite direction, which, were either in or near the intersection, and to give the appropriate signal, and that then he might proceed to turn left and that other vehicles approaching from' the opposite direction at a greater distance were then required to yield the right-of-way to defendant'. ■ The instruction was in accord with CLS 1954, § 257.-650 (Stat Ann 1952 Rev § 9.2350), and was not in error. Plaintiff’s contention that it was improperly given appears to stem from her position that the law required defendant, after entering the -intersection under a favorable green light, to stop and wait for a change in the traffic light before completing the left turn. We are cited to no statutory or ordinance authority for that view.”
Plaintiff’s - argument undertakes to assume that defendant was guilty of violating the statute. In view of the fact, however, that the police car was at least 150 feet south of the intersection when the light turned, and in the absence of proof as to the precise location of defendant’s automobile at the time, the propriety of the assumption is open to question. Apparently plaintiff relies to some extent on an ordinance of the city which was not pleaded or offered in evidence in the case. However, the circuit judge entered judgment for defendant on the ground that plaintiff had not established the freedom of its driver from contributory negligence, such finding-being based on plaintiff’s proofs indicating that either the driver of the police car had not made observations for other traffic that might enter the intersection ahead of him, or that he had failed to see defendant’s automobile at any time prior to the instant of the impact.
Plaintiff’s employee owed the duty of making proper observations for' other traffic as he approached and entered the intersection. There was nothing to prevent the observance of such duty and the exercise of reasonable precautions in driving through the intersection. It must be assumed that he had in mind the rights of other drivers to use the intersection. We think the testimony on which the judgment was based clearly supported the factual findings of the circuit judge. The testimony of plaintiff’s driver, above set forth at some length, clearly indicates the situation that existed. The facts here involved are not analogous to the situation shown in Travis v. Eisenlord, 256 Mich 264.
In view of the conclusion reached on the main question at issue, it becomes unnecessary to consider the effect of plaintiff’s failure to offer proof of damages on the trial in circuit court. The parties are apparently in accord that in the municipal court trial there was a stipulation as to the amount of recovery if plaintiff was found entitled to damages. As suggested, however, the effect, if any, to be. given such stipulation in circuit court does not require determination.
The judgment entered in circuit court is affirmed. Defendant may have costs.
Dethmers, C. J., and Kelly, J., concurred with Carr, J. | [
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] |
Black, J.
Defendants are owners and landlords of what is photographically depicted as an old wooden apartment building at 8762-8764 Russell street, in Detroit. The building consists of 5 apart-, ments and a.store. ■ The infant plaintiff was one of a family to which the upper rear apartment of the building had been let by defendants.
During the early morning of March 13, 1956, the plaintiff (aged 5 months) was found crying in his bed, in the apartment. His face, tongue, hands, feet and other parts of the body had been badly bitten by rats, one of which was seen departing* by plaintiff’s father as he entered the bedroom. Plaintiff was taken immediately to a hospital where he remained a little over a month. Permanent injuries and scars from the bites have resulted. With particular reference to plaintiff’s left thumb and hand, the trial judge stated in his opinion that “the seriousness of the injuries are conceded.”
: During the period preceding plaintiff’s injuries repeated demands were made by the department of health, and the department of building and safety engineering (both of Detroit), that the defendant landlords repair and rehabilitate the .apartment building in question. In 1951 defendant Benjamin I. Magid was directed to build a rat wall (of wire) around the building and to “see that it extended from 6 inches above the surface of the ground to 24 inches below the surface.” Although this directive apparently was complied with at the time, it was found after plaintiff’s injuries were sustained that the wire extended only 6 inches below the surface and, at the point where the wire was affixed to the siding of the building, that the siding had partially rotted away, leaving easy entrance for rodents.
Six days prior to the date of plaintiff’s injuries an inspector of the department of building and safety engineering went over the building. He testified:
“After making a tour of the building, I noticed visible evidence of rat infestation throughout the building, and upon returning to my office, I referred this condition to the board of health.”
A few days prior to such injury date, and either by his own volition or in response to a complaint of rat infestation made by plaintiff’s father (there is a dispute of fact about this), defendant Benjamin I. Magid inspected the premises with plaintiff’s father and, having been shown a rat hole where the floor joins the baseboard in the apartment, left wire and plaster with plaintiff’s father for the purpose of filling and plugging the rat hole. The hole was not blocked or otherwise repaired, either by defendants or plaintiff’s father, prior to such injury date. Defendant Benjamin I. Magid did, however, shortly after his inspection of the building, make arrangements for fumigation of the building, the purpose being that of eliminating rats. The fumigation so arranged did not take place prior to such injury date.
This action for personal injuries, relying particularly on a specific provision of the State housing law and complementary ordinances of Detroit, was instituted by plaintiff’s next friend in the Wayne circuit. The case was tried to the court without a jury. The circuit judge at conclusion of the trial dictated his opinion into the record, the conclusion thereof being: “I think that the defendants did comply with the State law applicable to the situation.” Judgment thereupon entered for defendants. Plaintiff appeals.
Section 74, in article 4, of the State housing law (CL 1948, § 125.474 [Stat Ann 1958 Rev § 5.28461) reads as follows:
“Sec. 74. * * * Every dwelling and every part thereof shall be kept clean and shall also be kept free from any accumulation of dirt, filth, rubbish, garbage or other matter in or on the same, or in the yards, courts, passages, areas or alleys connected therewith or belonging to the same. The owner of every dwelling shall be responsible for keeping the entire building free from vermin. The owner shall also be responsible for complying with the provisions of this section except that the tenants shall be responsible for the cleanliness of those parts of the premises that they occupy and control.”
It is not disputed that this section applies to the situation before us; that defendants bore continuously, to the time of plaintiff’s injuries, whatever burden the statute relevantly imposes, and that the case on review thus refines determination of its issues to the sufficiency of evidence sustaining plain tiff’s right, if any, to reversal on assigned ground that the judgment below “is against the preponderance of the evidence” (See Court Rule No 64 [1945]).
Plaintiff’s declaration and the pretrial statement are plainly couched in terms of a cause of action for negligence arising out of the asserted violation of this statute. Accordingly, the question whether such statute imposes an absolute duty, for the violation of which the law recognizes no excuse, is one we need not consider.
Approaching the case from the thrust of the declaration and pretrial summary thereof, we find that the first question is whether by indisputable or clearly preponderating proof it was shown that defendant was guilty of a violation of the statute. Further, and if this initial question is to receive an affirmative answer, then the next and decisive question is whether it was shown by similar weight of proof that the plaintiff’s injuries were caused in whole or in part by such violation.
The statute applies to the city of Detroit (Lebovics v. Howie, 307 Mich 326). It was enacted, in part, for the protection of tenants lawfully in possession of dwellings coming within scope of said chapter 4 (Morningstar v. Strich, 326 Mich 541), and this infant plaintiff is as much entitled to its protection as are the signatory tenants themselves. The duty of the defendant landlords — that of responsibility for keeping the entire building free from vermin— was steadily breached by them. Of that there can be little question. The record is replete with evidence of complaint and notice to defendants having to do with rodent infestation. Previous municipal orders, looking toward critically required corrective action, received only token consideration by defendants. A week prior to the occasion of plaintiff’s injuries defendant Benjamin I. Magid was personally informed of conditions which, if let to continue, would amount (as applied to this multiple-apartment building) to a compounded violation of the second sentence of said section 74. All he did was to leave wire and plaster with plaintiff’s father and make leisurely arrangements for fumigation of the building. Defendants, re-alerted by this immediate notice, are in no position from a legal standpoint to excuse or ask excuse of such evident violation.
Defendants apparently labor under some misapprehension regarding effect of the father’s action or inaction as a causative force. The right of action considered here belongs to the infant plaintiff; no one else. No question of contributory negligence is open to defensive or other consideration. What the father did or did not do is quite irrelevant, the now refined issue being whether it was shown — by a clear preponderance of the evidence — that defendants’ proven violation of the statute constituted the or one of the proximate causes of plaintiff’s injuries. To this question our answer manifestly must be affirmative. The child would not have been bitten— nay, gnawed, and eaten upon — had the defendants done even a fair job of performance of duty under said section 74.
The trial judge released defendants from liability for stated reasons, his ultimate conclusion of fact being “that the owners did do everything, as much as they had notice of,” and that defendant Benjamin I. Magid “had contacted a vermin exterminator who did go down there and make the necessary arrangements to get rid of rats, which shows he (defendant Benjamin I. Magid) was on the job.” Here we find no legal or reasonable ground for excusing defendants’ violation of the statute. And this we affirm without deposited inference — either way — that excuses are or are not legally available for proven violation of such a statute.
By a clear preponderance — we well might say overwhelming weight — of the evidence, defendants were shown as having been guilty of actionable negligence according to rules quoted from Annis v. Britton, 232 Mich 291, in Morningstar v. Strich, supra. The judgment for defendants is therefore reversed and the case is remanded to circuit for new trial, with costs to plaintiff. On such remand, the plaintiff being an infant and the question of waiver of jury trial being-one meriting independent consideration of the trial judge, we recommend that the discretion provided by section 3, of Court Rule No 33 (1945), be reviewed prior to trial.
Smith, Edwards, Voelker, and Kavanagh, JJ., concurred with Black, J.
Dbthmers, C. J., and Carr and Kelly, JJ., concurred in the result.
We note, from easily read X-ray negatives (exhibits 8 and 9) sent here as a part of the original record but not included in either appendix, that the plaintiff infant has permanently lost a part' of his left thumb.
For specific provisions in ordinance relative to the situation here, see Ordinance No 204-E, Municipal Code of Detroit (1954), p 485 et seq.—Reporter. | [
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Voelker, J.
On October 13, 1956, plaintiff-appellee, David Griswold, purchased from defendant-ap pellant, Newhouse Oldsmobile, a 1956 Oldsmobile automobile. The agreed purchase price was $1,790 plus appellee’s 1955 Pontiac. At that time appellee signed a “car order” which embraced their deal as set out above. He also signed a conditional sales contract in blank and a “statement of motor vehicle sale” was typed out by appellant’s office girl. Plaintiff then took possession of the car.
On Wednesday morning, October 17, 1956, the appellee’s wife, received, through the mail, a copy of the contract from their finance company, together with a payment book showing figures larger than and different from those in the papers, appellee had signed. Appellee and his wife immediately went to Sparta to see appellant about why the finance contract was different and why appellee was required to pay $2,979, when the deal as consummated on Saturday, October 13, 1956, required him to pay ■but $1,790 plus taxes and financing. Appellant appears to have told them that that was the deal, and that the different figures were earlier used as a device to cheat the State out of sales tax. Appellee wanted to get his old car back and cancel the deal, but appellant had already sold it for $1,200.
The next day, October 18, 1956, appellee’s wife went to the finance company to tell them about what had transpired, and she was told that the contract was signed and that her husband would have to pay. Appellee then retained an attorney and suit was commenced for the difference between what the original papers required them to pay and what the finance contract required them to pay, or $787.80.
The facts as presented in the trial court narrowed down to the question of whether or not the defendant had agreed to assume the lien balance of $668 remaining unpaid on plaintiff’s 1955 Pontiac which he had accepted in trade on the new Oldsmobile. 'This question was presented to the jury-and-by its verdict we must assume that it found that defendant-appellant had assumed the lien as it brought in a verdict of $787.80, which amounted to the difference between the 2 contracts, that is, the $668 lien plus finance charges thereon for 36 months.
The single question raised on appeal is, “Was the verdict of the jury contrary to the proofs and evidence?”
The law in Michigan on this subject is clearly set out and discussed in Page v. Stanley, 242 Mich 326, 330:
“Evidence was introduced in support of this contention, which, if believed by the jury, would have justified a verdict for the defendant. On the other hand, the plaintiff introduced evidence which the jury believed and which justifies the verdict rendered. We have no right to disturb the verdict unless it is against the overwhelming weight of the evidence. Undoubtedly, the defendant’s able counsel argued the question in issue before the jury and detailed with emphasis all of the testimony which supported his claims and theories; and, undoubtedly, the jury who saw the witnesses and heard them testify weighed the evidence in the light of counsel’s argument. It is the province of the jury to determine the facts. In the instant case, they have determined them against the defendant. Prom our examination of the record, we are not persuaded that their verdict is contrary to the overwhelming weight of the evidence.”
Prom the excellence of their briefs, we assume that the attorneys here, like the attorneys in the Page Case, undoubtedly presented commendable arguments to the jury on the facts and questions involved in their case. The jury, being in the most favorable position to determine the facts, found for the plaintiff, and this Court after carefully reviewing the record is not persuaded that their verdict was contrary to the overwhelming weight of the evidence.
Judgment affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred. | [
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Kelly, J.
Plaintiff, Marvin Ouellette, entered into a written agreement with his uncle and aunt, Peter and Mae Ouellette, whereby he would, with them, own an undivided 1/2 interest as tenants by the entireties in premises upon which they operated a class “C” tavern. This agreement provided that in the event of death of Marvin or Peter Ouellette, the survivor would have the first option or refusal to purchase from the widow, heirs, executors or assigns, the undivided 1/2 interest held by the other in the land contract and premises. Peter Ouellette died on November 14, 1953, and his wife, Mae Ouellette, became the owner of his 1/2 interest in the premises and the bar.
In Ms Mil of complaint, plaintiff stated he talked to Mae Ouellette about his rights under the option after the death of her husband and that she asked him not to exercise those rights because she wanted the income from the property. His witnesses testified that Peter Ouellette’s wife, Mae, told him she would prepare a will in which the premises would be left to him upon her death. Plaintiff’s suit was predicated upon the fact that he relied upon that promise and, therefore, did not exercise his rights under the option.
On December 18, 1953, Mae Ouellette executed a will, which was deposited with the Wayne county probate court on January 14, 1954, devising and bequeathing all her rights in the property above described to Marvin Ouellette, “nephew of my deceased husband;” and further provided:
“It is my express intention that the title to the property heretofore described as 15209-11 Kercheval avenue, Grosse Pointe Park, Michigan, shall be vested in Marvin Ouellette and shall in no event be utilized for the payment of any cash bequests; in the event the balance of my estate is insufficient to pay the other cash bequests, it is my express intention that the amount of those cash bequests shall be prorated between those entitled thereto.”
Mae Ouellette moved to Huntington, West Virginia, on or about December 21, 1954. On May 27, 1955, she executed her final will, in which she devised her interest in this property to her sister and gave to Marvin Ouellette $2,000. . Mae Ouellette died November 13, 1955.
In finding for plaintiff, Hon. Chester P. O’Hara filed a carefully prepared opinion, stating;
“It is the claim of all of these witnesses that these conversations which they related occurred within the 30-day period after the death of Peter on November 14,1953. The court has observed these witnesses on the stand. They are all high-type people, all apparently trying to tell the truth, in the estimation of this court, and the court sees no reason for not giving to them the credit which apparently they are entitled to. We are not dealing with the people who have no standing in the community. We are dealing with responsible citizens of this community. The court observed them carefully and listened to them intently and made copious notes of what was said. * * *
“Mr. Belanger (Mae Ouellette’s attorney) testified that this was a lady of more than ordinary intelligence, apparently a keen individual, who had good business acumen, and that she was very honest and thrifty and very high type. In my judgment at the time she went down to him and had this first will prepared in December of 1953, she was definitely carrying out her agreement with Marvin and making sure that it was — -that nothing was going to happen to that particular property. * * *
“I hold that there was a contract, and that it has been proven by a clear and convincing manner and testimony and certainly by a preponderance of the testimony.
“The second question relates to the statute of frauds, whether or not is it applicable here. Well, it isn’t necessary to read CL 1948, § 566.108 (Stat Ann 1953 Rev § 26.908), with reference to what must be done under the statute of frauds on an oral agreement. We all know it must be in writing. The court is particularly interested in CL 1948, § 566.110 (Stat Ann 1953 Rev §26.910), which says: ‘Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements, in cases of part performance of such agreements.’
“I have already dealt with the question of no change of possession and things of that kind that may have been involved here. He had an option which he could exercise within 30 days after Peter died, and he could have bought that property, bought Peter’s and Mae’s interest in that' property as of that time for whatever the value of the property was as determined by arbitrators under the agreement, and under the contract as I find it to be he agreed that he wouldn’t exercise that option, that he would forego that right, and he would continue doing what he was doing in the way of collections, and so forth, giving to her her prorata share upon her promise to make a will to him of the property.
“Now, counsel says there wasn’t any consideration. Well, there was a promise for a promise. The fact that she may have done something, gave him something that he would have had to pay for, that is her business. The reasons that she may have had for doing that are her business, but I can readily see, in view of the situation existing between her husband and Marvin and the feeling and affection that was apparently there, she was doing what she wanted to do and was also providing for herself during the rest of her lifetime in getting the income from this property. Apparently that is all she was interested in. She had a right to make a contract like that. I think there was adequate consideration, and I think that when she went to West Virginia and changed that will and' took from him that which she' had agreed to give him, that she did exactly" what ■ is contemplated in this case of Adado v. Assid, 332 Mich 628, and other cases of similar import.
“In other words, I would say that her conduct down there when she changed that will was not only misleading but was fraudulent on her part insofar as Marvin Ouellette was concerned, because she took from him that which she had agreed to give him, and the 30 days had expired and he had no alternative insofar as the option was concerned. * * #
“I find that the contract wasn’t unfair, and neither was it inequitable, and there is no claim that she didn’t know what she was doing. I think that under the circumstances, specific performance should be granted. * * *
“I hold in this case that Marvin Ouellette completely performed.
“So for the reasons stated, I hold that the statute of frauds does not apply, that there was sufficient performance to take it out of the statute of frauds and place it under CL 1948, § 566.110 (Stat Ann 1953 Rev § 26.110), and I hold that in equity this court should enforce this contract between these parties. A decree may be prepared accordingly.”
After an examination of the briefs and appendices submitted, we do not feel it is necessary to say more than this: We are in complete accord with the chancellor’s findings.
In Urick v. Burge, 350 Mich 165, 173, we stated: “Now, upon what conceivable ground can we in this Court, who saw nothing of the witnesses and their demeanor, who heard nothing of their testimony, with its affirmations and its possible evasions, overrule the trial chancellor?” That observation is particularly applicable to this appeal.
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred. | [
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Voelker, J.
This case involves an approach-from-the-rear daylight collision with plaintiff’s car by the defendant’s ambulance, both going in the same direction. At the time of the accident the defendant had overtaken and was attempting to pass the plaintiff on his left. Plaintiff testified he was slowed almost to a stop with his left front wheel a foot or so over the center of the highway, about to make a left turn; that he was still signalling and watching the driveway and traffic approaching him .from the other direction; and that up to the time of the accident he neither saw nor heard any car or warning signal of any kind from the rear. The trial court’s opinion succinctly presents additional facts and poses our legal problem, and we quote it:
“Suit was brought by plaintiff against the defendant as a result of [a collision between?] an automobile owned and driven by the plaintiff and the ambulance owned and driven by defendant.
“The collision occurred March 16, 1953, on US-27, northeast of Charlotte, opposite the Martin Motor Sales on the north side of US-27, about a mile northeast of Charlotte.
“The plaintiff was driving in a northeasterly direction toward Lansing, and was in process of making a left-hand turn into the Martin Motor Sales. The defendant was also going in a northeasterly direction on US-27.
“The case was heard before a jury on May 16, 1955.
“At the time of the accident, defendant Burkhead was in the process of passing the plaintiff, driving the ambulance, with a patient, taking the patient to a Lansing hospital.
“The collision occurred opposite the southwest driveway into the Martin Motor Sales.
“The plaintiff testified that he drove out US-27 to the place of the accident, coming from the city of Charlotte and that he reduced his speed preparatory to making a left-hand turn by ‘short jerks on his pedal.’ He stated on direct examination that before starting to make the turn, he looked for traffic in front of him and back of him, looking back by looking-through the rearview mirror, and that the road was all clear within seeing distance, which was a distance of several hundred feet, or a quarter of a mile, and that he didn’t see any car approaching, and that he never saw it before the impact, which occurred, while the turn was being made.
“The plaintiff’s witness Preston stated that there was straight vision southwest from the scene of the accident of very close to a mile, with no obstructions nor hills nor valleys.
“On cross-examination, the plaintiff said he did not look back while making the turn, but was observing the car ahead of him and watching for southbound traffic, and further stated that the defendant was the one who should be looking out for ‘me,’ meaning the plaintiff.
“With reference to signals, the plaintiff said he blinked the stoplights on his car, which blinked when he put on the brakes, showing 2 red lights.
“When it was agreed by plaintiff’s counsel that all testimony regarding negligence was in, a motion for a directed verdict was made by the defendant on the ground that the plaintiff was guilty of contributory negligence, and had not given adequate signal before turning.
“The motion for directed verdict was granted.
“A later motion was made for new trial on the ground that the court erred in granting said motion.
“Two questions are presented for consideration: First, where there is nothing to interfere with the view of the highway, and the plaintiff failed to look, or looked and did not see what was to be seen, plaintiff cannot recover. Molda v. Clark, 236 Mich 277; Molby v. Detroit United Railway, 221 Mich 419; Jones v. Armstrong, 231 Mich 637, discuss the principle involved.
“The court is of the opinion that these cases are controlling of the issue, and that under the testimony the plaintiff was guilty of contributory negligence.
“Second: Did the plaintiff give an adequate signal?
“It will be noted that the statute in question requires that the plaintiff first see that he can make the turn in safety, and then give an intelligible signal or warning to another driver approaching from the rear.
“Under the facts in this case, it would appear that the plaintiff, on his own testimony, did not first see that he could make the turn in safety. This being true, it is not necessary for the court to determine whether or not he gave an intelligible signal by stepping on his brakes.”
At the time of the accident one of the applicable statutes (since amended largely by adding lettered paragraph [c] pertaining to signal devices on certain commercial vehicles) provided as follows (CLS 1952, § 257.648 [Stat Ann 1952 Rev § 9.2348]):
“(a) The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety and shall give a signal as required in this section.
“(b) The signal herein required shall be given either by means of the hand and arm in the manner herein specified, or by a mechanical or electrical signal device which conveys an intelligible signal or warning to another driver approaching from the rear.
“Whenever the signal is given by means of the hand and arm, the driver shall indicate his intention to start, stop, or turn by extending the hand and arm horizontally from and beyond the left side of the vehicle.”
It will be noted that the statute then as now provides that before turning the driver shall do 2 things: first see that the turn can be made in safety and thereupon give a signal as required by the statute. We further note that by giving a single signal a driver may thus indicate his intention of doing* 1 of 3 things: either starting, stopping or turning. Such a driver may give this single signal by 2 alternative means: 1, by holding his hand or arm straight out the left side of the car or, 2, by giving, a mechanical or electrical signal which “conveys an intelligible signal or warning to another driver approaching from the rear.” <
The statute does not prescribe or define the precise kind of warning or indication that the electrical signal must give, and the proofs here show that upon braking 2 red stop lights blinked at the rear of the plaintiff’s car, which lights did not however indicate, the direction of any proposed turn. In our view if' the holding out of a hand or an arm is sufficient to give adequate statutory warning to “another driver .approaching from the rear” of the signalling driver’s intention to do 1 of the 3 things just indicated above, then we think the blinking of rear red lights, even though not directional, should, in the absence of specific statutory provision requiring more, be equally efficacious to put a rear-approaching driver on warning that something was up and of his consequent need to proceed with caution.
Nor do we understand that once the turning lead driver has made his required observation and signal that either the statute or our decided cases require that he must thereafter also keep his eyes glued to the rear. Presumably on a busy highway an occasional car might just happen along from the opposite direction, and there was proof offered here that such was the case.
The trial court below grounded its decision on a legal doctrine which of late years has had quite an expanding vogue in this State: that if the plaintiff fails to look or looking fails to see what is there to be seen, he is guilty of contributory negligence as a matter of law. Now there are undeniable occasions where there is room for the application of this doctrine, but we think the situation presented in this case at this stage is not one of them. None of the 3 cases cited by the court for this doctrine involved our factual situation or the construction of the cited statute. The Molby Case was a collision between a truck and a streetcar; the Molda and Jones Cases were pedestrian cases, with a vigorous dissent in the latter. We recognize, of course, that the application of doctrines and rules of law to new cases need not necessarily await or depend upon pat factual identity. That way lies judicial stagnation. The reasons we think the doctrine of these cases does not apply here cut deeper than that. We shall now proceed to suggest some of them.
First, to hold categorically at that stage of the case that the plaintiff was wrong and should be peremptorily turned out of court for failing to see “what was there to be seen” was to infer something not then in proof, namely: that at the time the plaintiff looked and signalled, the ambulance was in fact there behind him to be seen. We find no proof on this score in this record. Therefore not only is this an inference unsupported by proof, but one which is also favorable to the defendant and unfavorable to the plaintiff. If one must speculate and indulge in inferences on this score it would seem equally if not more logical to infer that after the plaintiff took his look to the rear and saw nothing, the ambulance with its emergency burden of pain approached swiftly — and possibly heedlessly — from the rear. At a high rate of speed it would only have taken a matter of seconds for defendant’s ambulance to have borne dowm upon the plaintiff. In any case such an inference would at least have been more in harmony with the plaintiff’s testimony and the rule of favorable view. If a man says he looked and saw' nothing it is just barely possible that there was nothing to see.
Second, a favorable view of the plaintiff’s testimony tends also to indicate that there might still have been adequate room for the ambulance to have safely passed him, and that plaintiff’s claimed actions or failures may not necessarily have contributed to or have been the proximate cause of the accident. (Gleason v. Lowe, 232 Mich 300.) Moreover, -if the plaintiff’s car was. situated as he testified, ready to turn, it would appear that the doctrine applied by the court might all the more apply in reverse: that the plaintiff’s car was there by the defendant to be seen.
Third, according to the wording of the statute itself (and contrary to certain inferences, at least, in the court’s opinion) even if the plaintiff driver had seen another motor vehicle approaching from his rear, he would still not necessarily have been barred from negotiating his left turn provided that (1) he reasonably concluded he could do so in safety and (2) gave “an intelligible signal or warning to another driver approaching from the rear.” The very wording of the just-quoted portion of the statute seems plainly to contemplate that under proper circumstances a left turn may still be made although there are in fact other vehicles approaching from the rear and the turning driver has seen them. Such a view also tends to accord with the pressing realities of present-day traffic.
Nor do we think that the reasonableness of the front driver’s conclusion that he could make his left turn in safety should be measured solely by the fact that there was a collision, provided he also timely gave his required signal or warning. To hold thus is to test the plaintiff’s actions without any regard to the defendant’s possible negligence or reciprocal responsibilities. Under such a rule in some situations the more negligent the court-ignored conduct of the defendant might be, the more “unreasonable” the action of the plaintiff would consequently appear. This is to safely isolate the plaintiff from a jury trial in a good many negligence cases.
If there was competent testimony that the plaintiff did observe and did timely signal, then reciprocal driver duties became squarely involved. We cannot in these situations isolate and examine the plaintiff’s conduct in a vacuum, like a beetle under a glass; Ms conduct must be examined and weighed in conjunction with what corresponding conduct the plaintiff might reasonably have expected on the part of the defendant. As Mr. Justice Black recently so well said in his well-reasoned opinion in Weller v. Mancha, 351 Mich 50, 67, quoting approvingly from earlier but recent cases:
“ ‘As we have previously seen (Clark v. Shefferly, 346 Mich 332) the question of contributory negligence is usually judged, not alone by what the plaintiff did or did not do, but also by the con joining-facts pertaining to what in the way of legal duty the plaintiff had a right to expect of the defendant.’”
The court’s ruling below appears to overlook any consideration of “what in the way of legal duty the plaintiff had a right to expect of the defendant”— and thus without proof to have tacitly resolved any questions thereon in favor of the defendant. What are these possible duties? We can suggest a few of them obliquely without citing a lot of statutes. Had the defendant performed or breached his own statutory or other duties in the driving of an emergency vehicle? Or in attempting to overtake and pass a car proceeding in the same direction ? Should' he have in this situation instead passed on the right ? The only testimony on these and other possible questions before the court below was largely negative but indicates that if the approaching and passing defendant gave any warning signals whatever — of' which there was no proof — this plaintiff did not see or hear them. Should not his testimony — at least at this stage of the case — have warranted instead the possible inference that no warning signal indeed was given? Under the doctrine of favorable view we think it should have.
In this connection we may add that on this record, as it stands, the mere fact that defendant’s vehicle appears to have been an ambulance engaged in plying its trade does not alone and of itself serve automatically to relieve its driver from proceeding with care. See City of Kalamazoo v. Priest, 331 Mich 43 and Eggebeen v. Red Top Cab Company of Grand Rapids, 334 Mich 490. See, also, CLS 1956, §§ 257.603, 257.632 and 257.653, subd b (Stat Ann 1952 Bev §§ 9.2303, 9.2332 and 9.2353, subd b).
Under the rule of favorable view we think that the fair inferences of the plaintiff’s testimony here ■ — even accepting the trial court’s account of that testimony in its opinion — -indicate that he at least claimed that he made a timely observation to the rear, and further that by timely blinking his rear red lights he also signalled an intention at least to do something. He says he wanted to turn, determined that he could turn in safety, and signalled and got in a position to turn. In any case, since earlier he was already moving, then he scarcely could have been signalling an intention to start moving. There were accordingly but 2 alternatives: either he was signalling to the rear his intention to stop or he was signally his intention to turn. If he did this-then at least it would seem that on favorable view a fair inference was raised — especially in the absence of any defense testimony — that he had performed his statutory duty and that any approaching driver was put on warning. Especially must this be so in the absence of any proof as to what if anything the defendant himself did by way of warning or otherwise.
Let us pursue this further. Let us assume that proofs in the case below had proceeded, and the defendant had in due course offered favorable testimony as to his own actions or signals, say, or on the plaintiff’s lack of observation, or his lack of timely or 1 adequate signalling — or indeed that the plaintiff had done anything at all. On the state of the record before us we rather think, without deciding, that there would still have been a question of fact on these issues for the jury to decide. If so, then we are all the more at loss — especially when the factor of favorable view is added to the picture— to penetrate the logic of holding that where the defense has not been heard from at all that these same questions somehow become magically transformed solely into questions of law.
As we recently said in Shaw v. Bashore, 353 Mich 31, in commenting on the proper province of a trial court upon motions for peremptory verdict, the rule of favorable view means what it says, and it quite definitely does not mean that in applying it the court may instead take the dimmest or most unfavorable possible view. Rather it means that upon such motions “all facts and circumstances and reasonable inferences must be viewed in the light most favorable to the plaintiff.” This includes what he might reasonably have expected of the defendant. In all fairness we should add that the able trial court here reached its decision well over 2 years ago. A lot of water has gone over the legal dam since then, some of it bearing especially on this point. We choose to think that the learned judge below might well have reached a different result had he had the benefit of some of those interim decisions.
In any case the action of the court below must under these circumstances and for these reasons be reversed and the cause remanded for a new trial, with costs.
Dethmers, C. J., and Carr. Kelly, Smith, Black, and Edwards, JJ., concurred.
Kavanagh, J., took no part in the decision of this case.
By PA 1954, No 181.—Reporter. | [
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] |
Smith, J.
This case turns upon the delivery of a deed to certain real property. The deed was found in a safe-deposit box leased in the name of William J. McMahon, the deceased grantor, and Patrick Dorsey, who, with his wife Hazel, as tenants by the entireties, were the grantees. The plaintiffs are Mr. McMahon’s sole heirs.
Some 30 years ago, Mr. McMahon took into his home defendant Patrick Dorsey and Patrick’s sister Bernice, then about 10 and 11-1/2 years of age, re speetively. Here they lived during the years of their youth. Approximately 4 years after graduation from high school Bernice married and left the home. Patrick, however, never left the farm. He had worked it since he was a child, along with Mr. McMahon, and even after his marriage continued to reside on the place, Mr. McMahon having deeded him an acre out of the home farm, on which Patrick built his own home. As Mr. McMahon grew older he was able to do only the lighter work, Patrick doing the rest, in addition to factory work. The trial court found that the farming proceeds were split in no regularized manner, “the farm being-worked on a father-and-son arrangement.”
On September 18,1954, two years before his death, Mr. McMahon tidied up his affairs. On this date he executed the deed before us, conveying to Patrick and his wife the farm (120 acres less the 1 acre previously given Patrick). On this date, also, Patrick and Hazel signed a note promising to pay to each of William’s sisters the sum of $500, “to be paid within 90 days following- the death of William McMahon; if any of the above-named individuals predecease William McMahon, then there shall be no obligation to pay the sum herein specified to the party who is deceased, but only to those remaining.” These sums have in fact been paid.
As we have noted, the deed in controversy was found in the joint McMahon-Dorsey safe-deposit box after William McMahon’s death and it was thereafter recorded by defendant Patrick Dorsey. Mr. McMahon’s will, duly admitted to probate in the probate court for the county of St. Clair, gave the farm property to his wife for life (she, however, had predeceased him), remainder to his “living-brothers and sisters, share and share alike.” The plaintiffs herein, who are, as we noted, William’s sole heirs at law, filed a bill of complaint seeking to have the deed set aside and for other ancillary equitable relief. The trial chancellor having found for defendants, plaintiffs are before us on a general appeal. They here assert that there was never a valid delivery of the deed by William McMahon to Patrick, that such has not been established by a preponderance of the evidence, and that there is no evidence to show that William McMahon ever relinquished control of the purported deed. •
The formalism with which the courts anciently treated questions of delivery has been largely abandoned. The modern inauiry places but little emphasis upon manual tradition. It has come to be recognized that, as in other situations involving the concept of “delivery”-{e.g., the making of gifts), the significance of delivery is its manifestation of the grantor’s intent that the instrument be “a completed legal act.” See Aigler’s comment in 18 Mich L Rev 314. The Illinois court phrased the problem with accuracy in Berigan v. Berrigan, 413 Ill 204, 215 (108 NE2d 438), when it held:
“Delivery, in its legal and-technical connotation, is a vital part of the execution of a deed and is essential to the operation and validity of the conveyance. We have stated many times that delivery of a deed is strictly a matter of the intention of the grantor as manifested and evidenced by the words, acts .and circumstances surrounding the transaction. (Alexander v. American Bible Society, 407 Ill 49 [94 NE2d 833]; Dry v. Adams, 367 Ill 400 [11 NE2d 607].) Manual transfer of the deed is not indispensable to delivery but is evidence of delivery. The controlling factor in • determining the question of delivery in all cases is the intention of the grantor, and this is particularly the case where the grantor makes a voluntary conveyance to grantees who are very naturally the subject of his bounty. In such cases, courts of equity are strongly inclined to carry out this intention unless to do so would run contrary 16 very convincing evidence or well-established legal principles.”
See, also, Hutton v. Cramer, 10 Ariz 110 (85 P 483, 103 P 497).
■' Likewise, we have held repeatedly that “the whole object of delivery is to indicate an intent by the grantor to give effect to the instrument.” Reed v. Mack, 344 Mich 391, 397; Gibson v. Dymon, 281 Mich 137, 140.
In the case before us, however, we are not forced to the determination of intent from ambiguous circumstances. We have the unequivocal statement of the grantor himself as to his intention. The witness was Mr. Clifford Halsey, an adjoining neighbor, and justice of the peace, who had known Mr. McMahon for some 50 years, and with whom the latter had often discussed his business matters. We will proceed in the words of the record:
“Q. Mr. Halsey, you did have a conversation, you say, with Mr. McMahon then concerning his disposition of this farm, did you!
.“A. Yes.
“Q. And what did he tell you?
“A. He.told me that he had deeded the farm to Pat; he also had his name on the bonds.
“Q. And the reason for that would be why, did he tell you ?
“A. Because he felt that he owed it to him. He said if Pat had not stayed there with him he would have been up against it for help.”
The trial chancellor, upon consideration of this and other testimony and exhibits, concluded that “The intention and the desires of William J. McMahon are most obvious,” and determined as a matter -of-fact ‘-that the deed- was delivered by William J. McMahon to Patrick Dorsey in William J. Me Mahon’s lifetime.” We cannot say that he was in-error.
Decree affirmed. Costs to appellees.
Black, Edwards, Voelker, and Kavanagh, JJ.,. concurred with Smith, J.
Dethmers, C. J., and Carr and Kelly, JJ., concurred in the result. | [
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Voelker, J.
Plaintiff owned several cottages in a, lakeside resort area, one of which was built from cinder blocks manufactured and sold for building-purposes by the defendant. A few months after the cottage was built many of the blocks started to crack, chip and, also, to pit and explode into a popping series of minute craters, followed by numerous flakings and powdery deposits and exuding unsightly travelling- red and yellow stains known as “bleeding.” These strange phenomena occurred and were apparent both inside and outside the cottage, the blocks forming most of the interior wall surface. Some fruitless efforts were made by plaintiff to correct the situation, and she finally brought suit for damages against the manufacturer of the cinder blocks, grounding her claim upon breach of an express warranty and, also, upon breach of an implied warranty that the blocks were of merchantable quality under the statute hereafter cited.
The case was tried before the court without a jury. After hearing the testimony, pro and con, the court found that there was no express warranty and further. found that while the blocks were indeed defective and constituted a breach of an implied warranty, it nevertheless held against plaintiff because of lack of privity of contract between plaintiff and the defendant manufacturer. Plaintiff appeals here claiming that there was privity and that in any event she was entitled to maintain her action despite any lack of privity.
The question of privity arose in this case out of the fact that one Forrest Cook was to a disputed degree and capacity active on behalf of plaintiff in the purchase of the defective blocks and in the building of the cottage. Both plaintiff and Cook testified below (Cook by deposition taken in Florida) that he was merely her agent and employee in ordering the blocks and erecting the cottage, and plaintiff now urges that therefore the court was wrong in finding and holding that there was in fact any lack of privity between her and defendant. Defendant for its part claims and offered testimony below tending to show that Cook was not such an employee or agent but was an independent building contractor who had himself purchased the blocks from defendant, thus insulating the latter from all liability to plaintiff. Defendant further urges that regardless of any privity or lack of it, under Michigan law there can be no recovery by plaintiff against it in these circumstances.
Plaintiff offered proofs below that the blocks were defective as indicated but that none of such defects were apparent to her or to Cook when they were delivered to her or erected into the cottage. She testified that on one side of the cottage alone she counted over 1,200 pitted imperfections in the blocks measuring from 1/4 of an inch to 3 inches, besides many smaller ones. There is no serious dispute but that the blocks were defective, as claimed, although the defendant does dispute the extent and consequences thereof. Proofs were also offered that the defendant failed adequately to test and examine the materials that went into the blocks or properly to inspect or test the completed blocks.
There was expert testimony offered on behalf of plaintiff by the head of the engineering department of a Midwest university that “before-and-after” inspection could and should have been made of the blocks and of the materials that went into them; that about 25% of the blocks were cracked internally; and that the deterioration was largely internal and progressive in character. The trial court sustained a defense objection to an opinion by this expert as to the'rapidity of the deterioration and how long it would take before the wall would be open because of the defects.
On cross-examination a defense witness and general manager of defendant company testified that defendant made a claim against its supply company (which in turn had furnished materials for cinder blocks made by it) for failing to furnish proper materials, and that thereafter his company (defendant here) stopped making cinder blocks.
As noted, the trial court found that the cinder blocks were defective and that this constituted a breach of an implied warranty that the goods were of merchantable quality, contrary to subsection 2 of section 15 of the uniform sales act (CL 1948, § 440.15 [Stat Ann § 19.255]) creating under certain circumstances an implied warranty that goods sold shall be of merchantable quality; and, also, that it nevertheless found against the plaintiff because of lack of privity. In other words the trial court applied to this case the so-called “general rule” that a manufacturer is not liable for negligence or otherwise to a remote vendee with whom it had no direct contractual relations.
There appears to be competent if conflicting testimony in this record to sustain the court’s finding that Forrest Cook was not the agent or employee of the plaintiff in purchasing the blocks; that there was no express warranty made by defendant to plaintiff; and that the blocks were defective as claimed. "We cannot say that the testimony preponderates the other way and we therefore think we are bound by those factual findings. By the same token we think we are likewise bound by the court’s finding that the defects in the blocks constituted a breach of an implied warranty as to their fitness for the purposes sold and used. Whether we are also to be bound by the court’s holding that the plaintiff is barred from her action by lack of privity of contract with defendant will constitute the major concern of the balance of this opinion.
It is plain from the record and the opinion of the court below that it would doubtless have found for the plaintiff if it had not also found a fatal lack of privity. Under its view the fact that an intervening-person (Cook) bought the blocks from defendant served completely to insulate the defendant from any liability to the plaintiff because of lack of contractual rapport.
Thus we find that our case is classic in its simplicity : plaintiff was near and yet so far; if she had only gone and bought the blocks herself or through an unquestioned agent or employee she would doubtless have recovered; but the court’s finding on disputed testimony that Cook was, instead, a contractor barred her recovery for fatal lack of privity. Despite the oblique suggestion made here by defendant that plaintiff might have sued Cook or that Cook should have sued it, the fact is that plaintiff’s dilemma is complete: she cannot now turn around and sue her man Cook; she is committed under oath on that one far past the point of no return (moreover he is in Florida); nor can Cook sue defendant; aside from his presumable lack of interest he is likewise nicely committed by his deposition below that he was merely plaintiff’s agent and employee in purchasing the blocks. While all this is likewise no reason why she should prevail, it would appear rather plain that the plaintiff must lose both her appeal and any chance of ever being made whole unless we squarely hold that the court below was wrong in its law in holding that privity of contract was a necessary condition to recovery in these circumstances. We shall presently consider that issue, but before doing so shall de vote a paragraph to considering some other related issues.
Defendant suggests that, privity or no, the defects in the blocks do not impair the safeness or inhabitability of the cottage. We have noted that this was by testimony disputed by plaintiff, but even granting the correctness of defendant’s position (and disregarding the fact, that the widowed plaintiff here appears to make at least part of her living in that great American competitive sweepstakes: the care and housing of migrant tourists) we do not hesitate to hold (the issue of privity aside) that in these circumstances and in this day and age appearance as well as structural safety and durability is an important factor in determining the merchantable quality and fitness of these particular products as used in this case. Moreover there is expert testimony in this record that the deterioration of the blocks is internal and progressive and will at some undefined future time probably endanger the structure. As for defendant’s contention that plaintiff nevertheless appears hy the proofs to be renting her “bleeding” cottage at good rates, that would still be no defense on the merits (privity again aside), whatever factor it might properly be in the determination or possible mitigation of damages. We now proceed to face up to the big issue in this case: Should lack of privity bar this action as a matter of law?
As the court below correctly observed, there is little doubt that in the past our Court has for the most part devotedly followed the “general rule” and been reluctant to permit a third person “not in privity” to recover from a manufacturer on a theory of negligence or implied warranty. And it has correspondingly been reluctant to extend recovery — beyond what may loosely be termed “food” cases involving-personal injuries- — to other defective products, regardless of whether they involved personal injuries or injuries to property. (Smolenski v. Libby, Mc-Neill & Libby, 280 Mich 329.)
In fact, in the past in these situations we have not only tended to severely limit the factual area of recovery but we have shown an equally ready disposition to adopt and embrace the whole dreary legal apparatus and. rhetoric so long employed in these situations to narrow or prevent any recovery at all. ' Some of these open sesame phrases are: whether there -was privity or the lack of it; whether the defect was latent or patent; whether or not the offending product was sold in the original package; whether a vague requirement of a “higher degree of care” might sometimes alter the application of “the rule;” or whether the defective product did or did not contain an “inherently or imminently dangerous” article or substance harmful to humans.' We do not exhaust the list. There are other equally impressive and ominous catch-phrases, and awesome have been some of the semantic bogs negotiated by ours and other appellate courts when in particularly harsh cases they have attempted by such artificial ■“exceptions” to get around the barrier imposed by their own equally artificial “general rule” of nonliability.'
Sometimes even we have been inconstant to “the' rule;” occasionally even we have faltered in our reverence for the hallowed doctrine of Smolenski and the long line of related cases. Thus- in Bosch v. Damm, 296 Mich 522, we so far strayed from the paths of virtue as to approve recovery below in an action of negligence by a remote vendee plaintiff householder and his fire insurance company against the manufacturer of a defective refrigerator which caused a fire. We quickly managed, however, to atone for our brief flirtation with modern doctrine and temper our heretical departure from the past by vacating the judgment on other, grounds.' Thus, with notably few exceptions (which may be dismissed as occasional flashes of legal heat lightning rather than any genuine attempt to clear the troubled atmosphere) we have in this area pretty much continued to embrace and repeat most of the old legal formulas right down to the present day. This is not to single out our own Court for undue censure; in earlier days, to paraphrase the title of the old song, “everybody was doing it;” this writer would doubtless at one time have done it himself; but the question presently before the Court is whether we are going to continue to be hobbled by such an obsolete rule and its swarming progeny of exceptions.
Thus another brave if fleeting departure from the norm occurred in Ebers v. General Chemical Co., 310 Mich 261 (17 NCCA NS 660), where our decision approved the notion of recovery by a remote vendee against the manufacturer of a defective insecticide for peach trees where the proofs showed that the manufacturer had not adequately tested his product on Michigan trees. It will be observed that this was not a food case nor was recovery restricted to injuries to the person. This was a hopeful stride forward, but there again we showed an unfortunate disposition to bow to the notion of privity (while circumventing it); there again we felt compelled to repeat many of the old mystical platitudes and ritualistic phrases that have for so long cluttered our decisions in this area. That Ebers, however right the result, did not clear away the confusion may perhaps best be shown by the trial result in this case, some dozen-odd years later, when once again litigants are obliged to make the expensive trek to Lansing because of the unpredictable imposition of the old rule.
Saddled with such a doctrine and its hair-splitting exceptions, it is not surprising that while a few of our decisions have afforded passing illusory comfort to all, certainty has been afforded to none. The reason is simple: A court lacking a clear and understandable rule of its own can scarcely be expected to impart it to others. Legal confusion has inevitably resulted. Aggrieved plaintiffs have scarcely known whether to sue in deceit or fraud or for negligence or breach of warranty — or indeed whether it was worthwhile to sue at all.
Our Court perhaps uttered the towering legal understatement of the year (1924) when in Hertzler v. Manshum, 228 Mich 416 (a poison flour case), we observed that cases in this category “appear hopelessly at variance.” We there reverently discussed the accepted theory of claimed nonliability (our old friend, lack of privity) and then proceeded to hold that food cases were an exception (pp 421, 422) “and there only by reason of a want of a high degree of care.” While that case is not alone, it is typical of the curious things courts can bring themselves to do and say when they try vainly to wed the outmoded thinking and legal cliches of the past to the pressing realities of modern life.
Consider what was just said in Hertzler. “Higher care” was there our way around privity. This is a beguiling notion, but we find ourselves unable to discover why the imposition by judicial fiat of a mystical higher degree of care should magically dissolve the need for privity, as just asserted in Hertsler. Why should this be so ? Either lack of privity should always be a defense in these cases, or it never should be. The basically contractual notion of privity in this context has largely to do with the right of a party to bring his action against the person he seeks to hold, regardless of injury suffered. The tort idea of care or the lack of it has nothing whatever to do with that subject, though it may indeed have a lot to do with recovery.
We can also find no reason in logic or sound law why recovery in these situations should be confined to injuries to persons and not to property, or allowed in food and related cases and denied in all others. Nor, least of all, can we divine why our Court should ever have felt compelled, in the generally narrow circumstances where it has allowed any recovery at all, to split up the duty of care into esoteric degrees of high, low or medium, as though care were a chancy and fluctuating barometer of conduct which rose or fell depending on the state of our livers.
Care does not increase or diminish by calling it names. We think the abstract concept of reasonable care is in itself quite difficult enough to grapple with and apply in our law without our courts gratuitously conferring honorary degrees upon it. There is only one degree of care in the law, and that is the standard of care which may reasonably be required or expected under all the circumstances of a given situation, whether arising in the manufacture of canned beans or cinder blocks. Such confusion of care with privity in these cases is not only bad in itself but, worse yet, it inevitably tends to maim and muddy up the larger field of law in both contracts and torts.
We observe — and the defendant seeks to make much of the fact — that the declaration in the present action is not in terms grounded upon negligence of the defendant, although certain of the proofs, as already indicated, tend rather clearly to show its negligence. We also find that in Michigan — whatever the rule may be elsewhere — there is authority for treating actions of this kind based upon implied warranty by the manufacturer as though they were explicitly grounded upon negligence.
Thus we said in Hertzler v. Manshum, 228 Mich 416, 423 (although we limited our remarks to foodstuffs) :
“The implied warranty, so-called, reaching from the manufacturer of foodstuffs to the ultimate purchaser for immediate consumption is in the nature of a representation that the highest degree of care has been exercised and a breach of such duty inflicting personal injury is a wrong in the nature of a tort and not a mere breach of contract to be counted on in assumpsit. Except in name and to establish privity between the manufacturer and the ultimate consumer it is the same thing as negligence. Plaintiff’s case, in its last analysis, is bottomed on negligence. (Italics added.)”
Again in Ebers v. General Chemical Co., 310 Mich 261, 275, we stated (in countenancing recovery by a remote vendee against the manufacturer of a defective insecticide for peach trees), “Although plaintiff claims under the theory of an implied warranty, the real question is whether or not defendant was negligent.” We then proceeded to quote approvingly the language just quoted from Hertzler.
Whether this notion only adds to the confusion or is any sounder legal reasoning than some of the other things we have said in the past in this area may be open to some dispute, but if we have thus solemnly told litigants and their counsel that suing for breach of an implied warranty is in effect tantamount to suing for negligence (one might think, for one thing, that the burden of proof might in some cases be more onerous on the plaintiff in the latter situation) we lack the heart to banish this plaintiff in this case because she trustingly took us at our word. We suggest in the future, however, that, where warranted by the circumstances, such declarations should sound explicitly in negligence as well as for claimed breach of warranty.
In addition we observe that the modern trend in other jurisdictions is to permit recovery by remote vendees against the manufacturer whether the action sounds in negligence or on an implied warranty or both. Thus at page 53 in the 1957 cumulative supplement to 46 Am Jur, Sales, § 825, p 947, the supplemental text reads as follows: “To recover damages for an injury from goods purchased, a plaintiff may rely upon negligence alone or upon an implied warranty, or may plead negligence and recover on the implied warranty, or, upon pleading both, may waive the tort and recover on the implied warranty.”
A succinct but thorough thumbnail sketch of the history and development of this doctrine of liability of a manufacturer to a remote vendee appears in the 1957 supplement to 46 Am Jur, Sales, § 812, at pp 47-49, which in turn appears to be based to a large extent on a similar annotation in 164 ALR 569. The supplementary text traces how the doctrine of non-liability crept into our law from a casual dictum in an English case decided in 1842 (which, to add to the delightful irony, did not even involve a manufacturer), and how many American courts quickly fell upon this ancient dictum and blew it up into a “general rule” to relieve manufacturers of all liability; of how our courts then gradually grafted upon it a bizarre cluster of “exceptions,” some of which we have already noted, which wondrously grew and g’rew until, in all truth — much like the boa constrictor swallowing itself — the exceptions devoured the rule; and how the English in due course sensibly scuttled their earlier dependence on this old dictum while many of our American courts remained tenacious in their devotion to the old “rule” — many, indeed, even after Justice Cardozo’s historic decision in MacPherson v. Buick Motor Company, 217 NY 382 (111 NE 1050, LRA1916F, 696, Ann Cas 1916C, 440).
The text of Am Jnr tacitly suggests the uncharitable notion that possibly the increased popularity of the doctrine of lack of privity as a defense in these cases was in some jurisdictions motivated as an inspired answer to the disturbing challenge of the MacPherson Case itself. Contemplating such a state of affairs one cannot resist borrowing from Justice Black’s recent opinion in City of Dearborn v. Bacila, 353 Mich 99, 112, where he quotes from Justice Holmes (Collected Legal Papers, p 187) as follows :
“ ‘It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IY. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.’ ”
As noted, there is a leading annotation on this whole subject in 164 ALR 569, cited throughout the reference already made to Am Jur, but we shall here content ourselves with giving but a few extracts from p 48 in the cited Am Jur supplement, which we quote without further ado:
“In other words, under the modern law, where the manufacturer is held not liable for negligence, he is excused from liability on doctrines of the law of torts; lack of foreseeability, want of actual negligence, or the fact that the injury was not proximately caused by his conduct, is the true basis of nonliability. The manufacturer is not excused under the modern law merely because there happened to be a lack of any privity of contract between him and the injured person; such an artificial and anachronistic basis for relief from tort liability can no longer, in the final analysis, be asserted.
“Under the modern doctrine there is little doubt that a person who has had no direct contractual relations with a manufacturer may nevertheless recover from such manufacturer for damages to property caused by the negligence of the manufacturer in the same manner that such a remote vendee or other third person can recover for personal injuries.”
And again:
“The use of such phrases as ‘inherently dangerous/ ‘imminently dangerous/ ‘intrinsically dangerous/ et cetera, in attempting to fix the bounds of a manufacturer’s liability for negligence, has led to considerable confusion in the authorities, and the retention of the ‘general rule’ and the ‘exceptions’ seems to have enlarged, and not to have diminished, the problems of the courts. The simplest way out of the difficulty would be to take the route charted by the Massachusetts court in Carter v. Yardley & Co. [319 Mass 92 (64 NE2d 693, 164 ALR 559)] and abandon all attempts to preserve a ‘general rule’ of nonliability which has been eaten away by exceptions. If the suit is in negligence, based on principles of tort, liability or nonliability in a particular case can be ascertained by applications of ordinary principles of tort law, without regard to notions about ‘privity of contract.’ Even if the old ‘general rule’ is repudiated, and a manufacturer’s liability or nonliability for negligence is predicated purely and simply on the law of torts, dispelling any notions about necessity of privity of contract, it is obvious that in a great many instances the manufacturer will not be held to be liable. But if he is excused from liability, he will be excused because there is no case against him under the law of negligence — a result which is fair, logical, and compatible with modern social and economic relationships.”
The Yardley Case, cited above, contains an excellent history of the “general rule” and is a leading modern case in this field. It also contains a citation of many texts and law review articles on the subject. As noted, the full text of the case appears at 164 ALR 559. The long opinion in the Yardley Case concludes very simply:
“The time has come for us to recognize that that asserted general rule no longer exists. In principle it was unsound. It tended to produce unjust results. It has been abandoned by the great weight of authority elsewhere. We now abandon it in this Commonwealth.”
To these sentiments we utter a fervent amen.
In this case it appears that there was a lack of due care. Merely to describe what happened to the blocks should be showing enough on that score — but here the defendant admitted it inspected or tested neither the raw materials nor the finished blocks. Granting the learned trial court’s understandable bewilderment under our past decisions, we think it should have permitted recovery either on a theory of negligence or implied warranty and should also have proceeded to take such further proofs on plaintiff’s damages as may have been necessary. Therefore the judgment for defendant below is set aside • and the cause remanded for further proceedings consistent with this opinion, including the taking of such further proofs as may be necessary, with costs to appellant. ,- ,
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Voelker, J. | [
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Kavanagh, J.
Plaintiffs filed a bill of complaint in the circuit court for Calhoun county on April 4, 1956, praying for a declaratory decree. An amended bill of complaint was filed on June 13, 1956, alleging that on April 8, 1956, the defendant leased or sublet the premises covered by the lease to another person or persons in violation of the terms of said lease without obtaining the written assent of plaintiffs as provided for in the lease, and that by reason of said violation, said lease is no longer binding upon the plaintiffs.
Defendant filed his answer to the amended bill of complaint on July 18, 1956, in which he admits that he sold his business and sublet the premises to a third party, hut avers that said sale and subletting of the premises was not in violation of the terms of the lease. He further avers that the lease does not contain a clause requiring the written assent of plaintiffs to said assignment or subletting, and that said clause contained in the printed form upon which the lease was prepared was deleted by striking through certain portions of the printed clause and by not filling in the pronouns in the blank spaces, and that it was the intention of the parties that said clause be stricken and eliminated.
The facts concerning the leasing of the property are that plaintiffs, Cecil Dudley and Ruth Dudley, had constructed a drive-in refreshment stand on the lot in front of their home, where they sold ice cream and soft drinks, et cetera. In the spring of 1955 they advertised said drive-in stand for lease. The defendant, John A. Rapanos, answered their advertisement, and they discussed leasing the property. They were to meet the following week for a final determination as to a lease. The following Saturday the defendant came from Ann Arbor and he and the plaintiffs talked over the terms of the lease. An attempt was made to contact an attorney to draft the final lease of the premises. Since it was Saturday afternoon the parties were unable to obtain an attorney who would draft the lease for them. It is admitted that the defendant prepared and typed the lease upon a printed form. There is a dispute as to whether defendant informed the plaintiffs that an attorney had drafted the lease. There is no dispute about the fact that defendant left plaintiffs’ premises late that afternoon and returned with a prepared and typed lease upon a printed form.
A friend of defendant, George Mantas, was with defendant at the home of plaintiffs later that evening when defendant and Cecil Dudley went over the lease together, and in a number of places the defendant made changes therein with pen, some admittedly at the direction of plaintiff Cecil Dudley and some at the direction of the defendant. Eventually that evening the lease was executed.
Defendant took possession under the lease, renovated the premises, and made some substantial improvements thereon at considerable expense to himself. In April, 1956, defendant sold the business to Mr. and Mrs. Bocoske, without the written assent of the plaintiffs, and in this fashion was raised the real question in controversy in this suit.
Does the lease, as executed, require the written assent of the plaintiffs to any assignment or subletting therefor?
At the hearing plaintiffs established the execution of the lease which contained the usual clause, providing that assignment, transfer, or subletting of the premises could not be made without the written assent of the first party. However, the first and last parts of the clause had diagonal marks drawn through the words “Said part of the” and the last 4 words “of the first part,” leaving the clause to read as follows:
“second part further covenant that will not assign nor transfer this lease, or sub-let said premises, or any part thereof, without the written assent of said part .”
The defendant contended that the diagonal marks at the beginning and end of said clause constituted a cancellation of said clause, and that it was the intention of the parties to the lease that such diagonal marks constituted a cancellation of the entire clause.
Defendant testified that said clause was discussed at the time of the signing of the lease, and that plaintiff Cecil Dudley understood and consented that the same be stricken from the lease, and also agreed that the diagonal marks at the beginning and . end of said clause cancelled the clause. Defendant’s friend, George Mantas, testified to the same effect. Plaintiffs testified that said clause and the diagonal marks were not discussed, and it was not the intention of plaintiffs that said clause should be stricken from the lease.
The trial court found as a matter of fact that said clause, as it now stands in the lease, is intelligible and provides that the second party is not to assign or sublet the premises without the consent of the parties; that the defendant failed to establish that the diagonal marks at the beginning and ending of the clause were intended by the parties as a cancellation of said clause; and that the defendant did breach said lease by assigning and subletting the premises.
Defendant raises 4 questions on appeal:
“1. Do plaintiffs have a burden of proof of the existence of a clause prohibiting assignment by lessee without lessors’ written consent?
“2. In a lease partly printed, partly typewritten, should the typewriting prevail over the printing?
“3. Did the lease contain a clause prohibiting assignment by lessee without lessors’ written consent?
“4. Are plaintiffs entitled to have the lease decreed forfeited?”
"With reference to the defendant’s position regarding the burden of proof and the circuit judge’s ruling with respect to it, it would appear that the plaintiffs in this action proceeded with the burden of proof and, through the testimony of the lessors, established a prima facie case, indicating that it was not the intention of the parties to have the clause prohibiting assignment by the lessee stricken from the instrument. When this prima facie case was rebutted by the testimony of defendant and his witness, plaintiff carried forward the burden of proof. It would appear that the remark of the court that the burden of proof was on defendant can be safely dis regarded. Clearly the crux of this case has to do. with the trial judge’s apparent belief of the testimony of plaintiffs’ witnesses in preference to defendant’s. Add this fact to the proposition of law that an instrument must be construed most strongly against the party drafting it and you find the position presented to this Court. Admittedly, defendant drafted the lease in question. If his failure to strike all of' the clause presented an ambiguous instrument, then,, oral testimony could be entered to explain such ambiguity and to explain whether or not it was the intent of the parties, by the insertion of diagonal bars, to strike out the whole clause. Failure to. strike all of the clause must be construed most strongly against defendant who drafted the instrument. Wetmore v. Pattison, 45 Mich 439; Ardis v. Grand Rapids & Indiana R. Co., 200 Mich 400; Brown v. A. F. Bartlett & Co., 201 Mich 268; Higbie v. Chase, 306 Mich 577.
We cannot say, on examination of the entire record, that, had we been in the position of the trial judge, we would have found otherwise than he did with respect to the conflicting claims of the parties concerning whether there was discussion of the cancellation of the clause prior to the execution of the same. The trial judge heard the witnesses, observed their demeanor, and was in the best position to determine their credibility and to conclude what the facts in the case really were. Although this Court on appeal hears chancery cases de novo, it ordinarily will not reverse the lower court where there is evidence and testimony to support the finding of the lower court unless justice demands it, or it can be said that the evidence clearly preponderates the other way, the trial judge being in a better position to test the credibility of the witnesses by observing them in court and hearing them testify. Grace Har bor Lumber Co. v. Ortman, 190 Mich 429; Van Allen v. Sprague, 206 Mich 116; Higbie v. Chase, 306 Mich 577; Bennett v. Bennett, 336 Mich 133. Nothing in the record of this case persuades us that the trial court erred.
Decree affirmed. Costs to plaintiffs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Voelker, JJ., concurred. | [
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Carr, J.
The parties to this cause were divorced, in 1944, by the circuit court of Oakland county, the decree being filed on May 6th of that year and enrolled on May 26th following. Plaintiff was given the care and custody of the 2 minor children of the parties, then 4 and 5 years of age respectively. Defendant was ordered to pay the sum of $20 per week until the older child reached the age of 18, and thereafter $10 per week until November 15,1957, on which date the younger child attained the age of 18 years. The property interests of the parties were also determined by the court.
Shortly after the granting of the divorce, defendant, as it is claimed, left the State of Michigan and went to Florida where he has since resided. He did not thereafter make further payments for the support of his children. On August 17, 1956, plaintiff filed a petition in the court reciting the provisions of the decree with reference to the custody and support of the children, alleging defendant’s failure and refusal to comply therewith, and stating that defendant had recently acquired real property within the State of Michigan out of which the moneys due from him under the decree might be collected. Plaintiff asked that the court determine the amount due and owing from defendant, and that the issuance of a writ of execution against defendant’s property in this State he authorized.
A supplemental petition was filed on September 24, 1956, alleging that defendant was entitled to receive property, both real and personal, located in Michigan, under the will of his mother, who died testate July 8, 1956, that the estate of the mother was in process of being probated in Dade county, Florida, that ancillary administration proceedings had been instituted in the probate court for the county of Wayne, and that an administrator had been appointed by said court. Plaintiff asked that said administrator be made a party defendant, that a receiver be appointed, and that an injunction issue restraining the administrator from turning over to defendant any money or property from said estate belonging to defendant. In accordance with said petition an order was entered joining the administrator as a party defendant, restraining him from turning over to defendant St. Ana any of the property referred to in the petition, and requiring said defendants to show cause why the injunctive relief sought by plaintiff should not be granted and a receiver appointed.
A second supplemental petition was filed by plaintiff on October 11, 1956, averring that on the 28th of September preceding defendant St. Ana had by quitclaim deed conveyed to Frederick L. Neff the real property in Michigan beaueathed to him under the terms of the mother’s will. It was further alleged that the conveyance was made without consideration and for the purpose of defrauding plaintiff. Reference was made to the prior petitions pending-before the court, and plaintiff asked that Neff be made a party defendant and that he be restrained by the court from transferring or encumbering the real estate so deeded to him.
Defendants filed their answers to plantiff’s petitions, denying her right to the relief sought. Motions to dismiss and for judgment on the pleadings were also filed, each motion being denied by the court. Following a hearing the court by order and supplemental decree filed November 23, 1956, determined that the amount then due to plaintiff under the provisions of the 1944 divorce decree was $11,-613.40. A receiver was appointed as requested by plaintiff. Defendant Neff was enjoined from transferring or encumbering the property in question, and the administrator of the estate of defendant St. Ana’s mother was enjoined from paying or transferring to-St. Ana money or property due to the latter under any order of distribution made by the probate court.. No appeal was taken from the supplemental decree.
The remaining issues in the- proceeding, as raised' by plaintiff’s petitions and the answers thereto, were-determined, following a hearing, in a decree filed March 12, 1957. It was therein adjudged that the quitclaim deed from defendant St. Ana to Neff be-vacated and declared null and void as against the plaintiff, her heirs and assigns, and that a writ of' execution might issue against the property as described in the deed. As appears from the calendar entries, defendant St. Ana filed a claim of appeal on March 26, 1957. Thereafter, under date of April 4, 1957, said defendant filed a motion for rehearing, which was denied on the 8th of April following. The reasons for such denial do not appear in the appendices submitted by counsel or in the original record filed in this Court. While the calendar entries disclose the action taken by the court, appellee insists that no formal order was filed. On April 26, 1957, defendant St. Ana filed a second claim of appeal from the decree of March 12th preceding, and “from order-dismissing defendant’s petition and motion on rehearing.”
On behalf of appellee it is claimed that defendant is not entitled to have his appeal heard by this Court on the theory that the claim thereof first filed was abandoned, that no order was entered on the petition for rehearing, and that the second claim of appeal was not seasonably filed. From the record before us, however, it does not appear that the first claim was withdrawn, or that any attempt to withdraw it was made. "We are entitled to assume the correctness of the calendar entries, no question with reference thereto having been seasonably or properly raised. It is significant that no motion was made to dismiss the appeal. Defendant St. Ana is entitled to a determination of the question raised by him.
On behalf of appellant it is claimed that the trial court was without authority to permit the issuance of a writ of execution to he served on the real estate in question. Emphasis is placed on the fact that the decree of divorce did not authorize the enforcement of the provision for the support of the children by such means, nor was the decree subsequently amended by incorporating therein any such provision. It is insisted that a writ of execution may not he authorized other than by the decree. Whether such claim is well-founded depends on the interpretation to be given the provisions of CL 1948, § 552.27 (Stat Ann 1957 Bev § 25.105) which reads as follows:
“In all cases where alimony or allowance (for the support and education of minor children) shall be decreed to the wife, the amount thereof shall constitute a lien upon such of the real and personal estate of the husband as the court by its decree shall direct, and in default of payment of the amount so decreed the court may decree the sale of the property against which such lien is decreed in the same . manner and upon like notice as in suits for the foreclosure of mortgage liens; or the court may ayrard execution for the collection of the same, or the court may sequester the real and personal estate of the husband and may appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate to be applied to the payment thereof or the court in lieu of a money allowance may decree such a division between the husband and wife of the-real and personal estate of the husband or of the husband and wife by joint ownership or right as he shall deem to be equitable and just.”
The provisions of the statute clearly indicate that a lien imposed for the purpose of insuring that a provision in a decree of divorce requiring the payment of alimony or payments for the support and education of minor children must be declared in the-decree. However, a like restriction is not set forth, with reference to the power of the court to award execution, or to appoint a receiver.
We must interpret the statute as the legislature-has enacted it. It not being specifically required that authority to permit the issuance of a writ of execution shall be exercised by decree, we are not at liberty to read any such provision into the section quoted. Presumably the legislature considered that encumbering real estate with a lien should be done by decree (the recording of which the court may direct), but that the remedies by way of execution or receivership proceedings may properly be considered, and granted, when and if the necessity therefor arises through failure of compliance with the duty to pay alimony, or to support children. The situation is analogous to that presented when contempt proceedings are instituted to enforce such provisions of a divorce decree. The right to invoke the power of' the court in that respect is recognized by statute, and an order to -show cause, or an attachment, may be granted on tbe basis of tbe statute irrespective of the noninclusion in tbe decree of any specific provision relating to such method of enforcement.
In the case at bar the court that granted the decree of divorce was asked by proper petition to determine the amount due under the requirement for the ■support of the children of the marriage. Such order was made after hearing. It does not appear that any attempt to appeal therefrom was made, and the correctness of the finding is not in question here. The ■amount of appellant’s obligation being thus fixed, there is no merit to his contention that alimony and support provisions of the decree of divorce are subject to modification, and, hence, that a writ of ex--eeution may not properly issue.
This Court has in prior decisions indicated the interpretation given to the statute here in question. In Dewey v. Dewey, 151 Mich 586, the parties were ■divorced in September, 1890. Custody of 2 minor ■children was given to the mother, who was the defendant in the case, and the plaintiff was required to pay a certain sum per week for the support of 1 of said children until age 14 was reached. No payments were made under such provision. In May, 1903, the mother of the child filed a petition alleging the nonpayment, the total amount due, and asking that execution issue forthwith. An order was entered accordingly, and a levy made upon property of the ■defendant. Thereupon a petition was filed to set aside the order of the court, to recall the writ of ■execution, and to void the proceedings taken thereunder. It was held that the issuance of the writ ■of execution was irregular in that it was issued without notice to the petitioner, and that it was otherwise open to objection. The Court expressly recognized, however, the right to file the application and to make an order based thereon, even before enrollment of the decree, notwithstanding a statutory provision forbidding the issuance of execution prior to such enrollment. Under the facts in the case the Court set aside the sale and all proceedings subsequent to the filing of the petition, thus expressly recognizing by its action the propriety of the petition and the right to enter an order in accordance therewith.
In Wellman v. Wellman, 305 Mich 365, plaintiff obtained a decree of absolute divorce from defendant, said decree giving her the care and custody of a minor child of the parties and requiring defendant to pay $6 per week until the child attained the age of 16 years. Defendant became in default and plaintiff petitioned the court to determine the amount due her from defendant and to authorize the issuance of a writ of execution to collect the amount found due. Defendant answered the petition, alleging inability on his part to comply fully with the order. Following a hearing the trial court concluded that defendant had made the payments required of him to the best of his ability, reduced the aggregate of payments that defendant had not made, and provided for monthly instalments to discharge the obligation thus established. The plaintiff’s application for writ of execution was denied, and she appealed. , In sustaining the findings of the trial judge this Court pointed out that under the statute the circuit court was invested with discretion to-revise a decree granting alimony and payments for the support of children, and (p 372) “also with discretion regarding the issuance of execution for the collection thereof.” It was found that there was no abuse of discretion. See, also, Sullivan v. Sullivan, 300 Mich 640.
In the instant case the trial court was invested with authority to hear and determine plaintiff’s peti tion, to fix the amount due to her under the terms of the decree, and to authorize the issuance of a writ •of execution to enforce collection. The pertinent provisions of the statute were followed, and the order from which the appeal has been taken is affirmed: Plaintiff may have costs.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred.
See CL 1948, § 552.151 et seq. (Stat Ann 1957 Eev § 25.151 et seq.).
See CL 1948, § 623.150 (Stat Ann § 27.1649).—Reporter. | [
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Smith, J.
This case involves the Michigan chain stores tax. The appellants-appellees (hereinafter referred to collectively as “appellee”) are Michigan corporations, taxable as an entity (except Kalamazoo, Michigan Theatre Corporation) under section 3 of the act. They operate motion picture theaters in various cities and towns throughout the State, approximately 60 in number. They either own or lease the theater premises involved. In each of the theaters, it is stipulated, they “are also engaged in dispensing for a consideration, at retail, tangible personal property such as candy, nuts, popcorn and similar items. In each of these locations there is a space allocated for the purpose of so dispensing such tangible personal property which is occupied by display cases, candy and confectionery counters, popcorn machines and like fixtures and equipment.”
The retail business thus transacted is not inconsiderable, involving a total gross for the period from January, 1953, through June, 1954, of $2,497,117.76, and from July, 1954, through December, 1955, a gross of $2,261,056.14. The State (hereinafter referred to as appellant), through its proper agencies, sought to impose a tax on such retail vending upon the theory that appellee’s retail business, above described, is that of operation of a chain of “stores,” as the same are defined in section 2 of PA 1933, No 265, supra, and are so taxable.
The board of tax appeals having upheld the assessments made on such theory, appeal was taken by the theater corporations to the court of claims which, disagreeing with the board, held that “The counters so operated by appellants are not chain stores under the meaning of the statute, and therefore they are not taxable.” The department of revenue of the State has appealed to this Court.
The problem is one of statutory interpretation. Appellee does not deny that it is in the business of selling at retail at the above locations but it asserts that it is not taxable under the act. It roaches this conclusion by the following process of reasoning: (a) it asserts that it operates counters, not stores, (b) upon this premise, it continues, since it does not operate “stores,” it obviously cannot be taxed for operating stores, particularly for operating “chain” stores, (c) nor, it asserts, can it be taxed for operating chain counters since the taxability of chain counters under the act depends upon a separation of ownership between the counter operation and that of the business enterprise in which the counters are placed. Here, however, in appellee’s words, the “counters are each situated on premises in which the other business enterprise there carried on is under appellee’s own ownership, rather than under separate ownership.” Thus, since it is not operating stores, it is not taxable for the operation of a chain of stores, nor, on the other hand, is it taxable for operating a chain of counters, since their counters do not come within the statutory definition of taxable counters. Finally, it is urged, that:
“Appellees’ position is that the mere change in the ownership of the enterprise operating these counters so that the ownership of that enterprise and of the premises upon which that enterprise is being carried on became the same, affords no reasonable basis for placing the counters in a different classi fication than they were prior to such change of ownership. If there is no reasonable basis for placing such counters in different classes and if, as appellant contends, such a different classification is required by the Michigan chain store tax act, that part of the act which so requires constitutes a denial of uniformity of treatment of ‘counters.’ It therefore contravenes the requirements of article 10, § 4, of the Michigan Constitution (1908). It also constitutes a denial of the equal protection of the laws in contravention of amendment 14, § 1, of the Federal Constitution.”
All of this, it will be observed, goes back to the' first assumption above made, namely, that appellee operates not stores but counters. What is the difference between a counter and a store ? Must there be more than one counter to have a store? Two? That even one is not sufficient may come as a surprise to a host of small “store” keepers in the various hamlets and villages throughout this State. In popular speech the term “store” means a place where merchandise is sold. It may be a portion of a dwelling house, Craig v. Pattison, 74 Miss 881, 884 (21 So 756), or a “banking house,” Wilson v. State, 24 Conn 57, 70. It may be, simply, a “shop,” Barth v. State, 18 Conn 432, 440, or it may be a “butcher” shop, Petty v. State, 58 Ark 1 (22 SW 654), or a “junk” shop, Pitts v. City of Vicksburg, 72 Miss 181 (16 So 418). (In fact we commonly speak of going “shopping” as meaning a visiting of stores.) It may be a popcorn stand, People v. Burley, 26 Cal App2d 213 (79 P2d 148, 150), a saloon for the sale of “lager beer, cigars, and oysters,” Commonwealth v. Whalen, 131 Mass 419 (syllabus), or a filling station, Fox v. Standard Oil Company of New Jersey (W Va), 294 US 87 (55 S Ct 333, 79 L ed 780).
With a range of meanings so diverse, and shades of meaning so abstruse, varying, indeed, with statu tory purpose, as we range fields of law from the criminal to the commercial to the governmental, not surprising is it that we find our statute “supplying its own glossary.” Cardozo, J., in Fox v. Standard Oil Company, supra, 95. We are not left dependent upon dialect, colloquialism, the language of the arts and sciences, or even, the common understanding of the man in the street. "We have the act itself. We need not, indeed we must not, search afield for meanings where the act supplies its own. It provides that:
“Sec. 2. The term 'branch or chain store,’ as used in this act shall be construed to mean and include any store or stores, or any mercantile establishment or establishments in excess of 1 which are owned, operated, maintained or controlled by the same person, firm, corporation, copartnership or association, either domestic or foreign, in which goods, wares or merchandise of any kind are sold at retail.” CL 1948, § 205.402 (Stat Ann 1950 Bev § 7.482).
It is clear from the facts stipulated that tangible personal property is dispensed for a consideration to those individuals wishing to avail themselves of the opportunity to so purchase at these locations. We thus have the sale, “at retail,” of articles which are, clearly, “goods, wares or merchandise of any kind.” The statute does not, indeed, require a store, nor does it. require any particular kind of a shop or stall or place of business, it providing that, in the words of Justice Cardozo, construing a like statute (Fox v. Standard Oil Company, supra, 95, 96), “the place at which the sale is made shall include not only places that in the common speech of men would be designated as stores, but, broadly speaking, any mercantile establishment, whether a store or something else.” Nor does the act exclude the vendor if the sales in question áre only an incident to some other primary objective, conducted, indeed, in what is said to be not a store but a “branch office.” Detroit Edison Co. v. Secretary of State, 281 Mich 428. The act, in short, as we said, supplies its own glossary-under which the appellee’s business is. clearly included within “any store or stores, or any mercantile establishment or establishments in excess of 1 which are owned, operated, maintained or controlled by the same person, firm, corporation, copartnership or association, either domestic or foreign, in which goods, wares or merchandise of any kind are sold at retail.”
The constitutional objection turns upon the classification of counters made by the legislature on. the basis of ownership, operation, maintenance or control. The original act (PA 1933, No 265) provided merely for the taxation of chain stores, defined as we have seen. In 1935, by PA 1935, No 177, the portion of the act dealing with branch or chain counters was added, subjecting them to the (lower rate of) tax provided they are located “on premises in which 2 or more separate business enterprises aré carried on under distinct and separate ownership, operation, maintenance and control.” Appellee argues that if it were not for the fact that there is combined ownership, et cetera, of what appellee variously describes as its “dispensing facilities,” its “popcorn-candy stands,” or its “counters,” and the other business enterprise (i.e., the theater), it could qualify under the “branch or chain-counter” paragraph of section 2, thus entitling it to the lower tax. It is evident, appellee believes, “that the element of different ownership of the premises upon which the various units of a multiple business enterprise' are situated from that of the ownership of the enterprise itself has no conceivable relation to the privilege which is the subject of the tax, vis., the advantage of multiple business operation of that enterprise.” Passing over appellant’s argument that appellee’s attach upon the constitutionality of the amendment is “self-defeating” (since, appellant urges, if the chain-counter amendment is eliminated on constitutional grounds, appellee is merely remitted back to the original chain-store portion of the act, under which it is now being taxed anyway) we will look to the merits of the argument made. In essence it is urged that concentration of diverse businesses on the same premises and under common ownership, operation, maintenance or control (as opposed to business thereon severally owned or operated) so lacks economic or other significance that it cannot reasonably serve as a basis for classification by the legislature. In support of this novel argument, which challenges our interest, we are cited neither to authoritative precedent (State or Federal), treatise, nor text. Appellee’s showing is, thus, far from the convincing demonstration of constitutional infirmity required to warrant our holding of unconstitutionality. What we have here i-s a chain of substantial business operations, caj)able of enjoying all of the benefits of coordinated administration and' management inhering in centralized ownership or control, taxed at a rate different from that imposed upon businesses without such unity of ownership or control. We cannot agree that the legislature’s classification is whimsical or capricious. Moreover, there is manifestly no conflict with the uniformity provision of the Michigan Constitution (1908) since all persons within the same class are treated alike, either as operators of chains of stores or, in the alternative, chains of counters.
The principles here involved were well expressed by the supreme court of the United States in State Board of Tax Commissioners of Indiana v. Jackson, 283 US 527, 537 (51 S Ct 540, 75 L ed 1248, 73 ALR 1464), wherein it was held, in upholding the constitutionality of a chain-store tax:
“The principles which govern the decision of this cause are well settled. The power of taxation is fundamental to the very existence of the government of the States. The restriction that it shall not be so exercised as to deny to any the equal protection of the laws does not compel the adoption of an iron rule of equal taxation, nor prevent variety or differences in taxation, or discretion in the selection of subjects, or the classification for taxation of properties, businesses, trades, callings, or occupations. Bell’s Gap R. Co. v. Pennsylvania, 134 US 232 (10 S Ct 533, 33 L ed 892); Southwestern Oil Co. v. Texas, 217. US 114 (30 S Ct 496, 54 L ed 688); Brown-Forman Co. v. Kentucky, 217 US 563 (30 S Ct 578, 54 L ed 883). The fact that a statute discriminates in favor of a certain class does not make it arbitrary, if the discrimination is founded upon a reasonable distinction, American Sugar Refining Co. v. Louisiana, 179 US 89 (21 S Ct 43, 45 L ed 102), or if any state of facts reasonably can be conceived to sustain it. Rast v. Van Deman & Lewis Co., 240 US 342 (36 S Ct 370, 60 L ed 679, LRA1917A, 421, Ann Cas 1917B, 455); Quong Wing v. Kirkendall, 223 US 59 (32 S Ct 192, 56 L ed 350). As was said in Brown-Forman Co. v. Kentucky, supra, at p 573:
“ ‘A very wide discretion must be conceded to the legislative power of the State in the classification of trades, callings, businesses or occupations which may be subjected to special forms of regulation or taxation through an excise or license tax. If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law.’
“It is not the function of this court in cases like the present to consider the propriety or justness of the tax, to seek for the motives or to criticize the public policy which prompted the adoption of the legislation. Our duty is to sustain the classification adopted by the legislature if there are substantial differences between the occupations separately class ified. Such differences need not be great. The past decisions of the court make this abundantly clear.”
See, also, C. F. Smith Co. v. Fitzgerald, 270 Mich 659.
Reversed and assessments made affirmed. No costs, a public question.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, and Voelker, JJ., concurred.
Kavanagh, J., did not sit.
PA 1933, No 365, as amended by PA 1935, No 177 (CL 1948, §§ 205.401-205.413 [Stat Ann 1950 Rev §§ 7.481-7.493]).
See department of revenue act, CL 1948, § 205.9 (Stat Ann 1950 Rev § 7.657 [9]).—Repoetee.
See Const 1908, art 10, § 4.—Reporter. | [
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Brickley, J.
In these cases we must decide whether trial judges may properly use CJI 7:8:0s, which explains to the jury the disposition to be made of defendants found not guilty by reason of insanity, over defendants’ objections.
Defendant Goad was charged with two counts of first-degree criminal sexual conduct. MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). At trial, Goad raised an insanity defense and offered the testimony of a psychiatrist to the effect that he was legally insane at the time of the incident because of acute brain syndrome, a mental illness which results from an interference with the functioning of the brain. The prosecutor rebutted this testimony. Over defense counsel’s objection, the trial court gave a dispositional instruction conforming with CJI 7:8:08. The jury returned verdicts of guilty on both counts, and Goad was sentenced to concurrent terms of life imprisonment.
On his appeal as of right, Goad claimed the dispositional instruction (CJI 7:8:08) should not have been given. The Court of Appeals, in an opinion per curiam, held that "a trial judge has independent authority” to give the disposition instruction, even over defendant’s objection. People v Goad, 109 Mich App 726, 727; 311 NW2d 457 (1981). Accordingly, the Court of Appeals affirmed appellant’s conviction because it found no instructional error requiring reversal.
Defendant Gillen was charged with one count of armed robbery, MCL 750.529; MSA 28.797; and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). Gillen raised an insanity defense at trial, and two psychiatrists testified that he was suffering from a mental illness. In rebuttal, the prosecutor called a psychiatrist who testified that Gillen was D.ot suffering from mental illness and was not legally insane. At the close of proofs, the trial judge, over defense counsel’s objection, gave the dispositional instruction, CJX 7:8:08. The jury returned a verdict of guilty but mentally ill on both counts.
In appealing his conviction, Gillen claimed the dispositional instruction was improper. The Court of Appeals affirmed the conviction, noting that the trial court complied with the duty to accurately instruct the jury as to the applicable law.
We granted leave to appeal for both cases and ordered that they be argued and submitted together, limiting the issue in each case to "whether the trial court erred in instructing the jury concerning the consequences of a verdict of not guilty by reason of insanity.” 417 Mich 1036; 335 NW2d 468 (1983).
The rule in Michigan has always been that neither the court nor counsel should address themselves to the question of the disposition of a defendant after the verdict. Indeed, it is proper for the court to instruct the jury that they are not to speculate upon such matters, and that they are to confine their deliberations to the issue of guilt or innocence. People v Szczytko, 390 Mich 278, 285; 212 NW2d 211 (1973) (opinion of Brennan, J.).
In Underwood v People, 32 Mich 1 (1875), the defendant challenged the then existing statutory procedure for trial of persons who raised an insanity defense. The Court, in upholding the trial procedure, noted that "[t]he finding of the jury is confined to the prisoner’s condition at the time of the commission of the alleged criminal act.” Id., p 2. The Court also stated that an "information . . . can lawfully embrace, no issue except the prisoner’s guilt as charged.” Any collateral inquiry would be foreign to the issue of the right of the jury to give a general verdict on the merits. Id.
In People v Williams, 218 Mich 436; 188 NW 403 (1922), the trial court had instructed the jury in part:
"[Y]ou are not concerned in the penalty, that is a matter for the discretion of this court, and if you were informed in any way as to the penalty that might be handed out, you should not be influenced thereby.”
This Court held the instruction was not error. Defense had made allusions to the possible consequences of a guilty verdict and it was therefore proper for the trial court to give the above instruction.
In People v Warner, 289 Mich 516; 286 NW 811 (1939), the jury, after finding itself unable to render a verdict, asked the trial court if a verdict could be accompanied by a recommendation of leniency. The trial court answered in the affirmative, and the jury returned a verdict of guilty with a recommendation of leniency after a short time. This Court reversed, holding:_
"Defendant was entitled to a fair trial and to a verdict by the jury upon the evidence without consideration of the punishment to be administered.” Id., p 521.
We quoted with approval the following language from a case with almost identical facts:
"The jurors should not have concerned themselves with the punishment, and ought to have been plainly told that they ought not to take that into consideration. Their function ended in deducing the truth from the evidence adduced and expressing it in their verdict. Anything said by the court calculated to draw their attention from the performance thereof, and to induce them to rest their conclusion upon ulterior considerations necessarily was misleading and prejudicial.” State v Kernan, 154 Iowa 672, 677; 135 NW 362; 40 LRA(NS) 239 (1912).
Against this time-proven principle a limited exception has arisen. People v Cole, 382 Mich 695; 172 NW2d 354 (1969). In Cole we noted that instructions as to a defendant’s disposition are extraneous to the basic duty of the jury and should not be given since they would hinder rather than aid the jury in determining the issue of guilt. Id., p 718. The reason for this rule is that jurors might disregard their oath to render a true verdict according to the evidence if concerned with extraneous considerations. Nevertheless, this Court held that the possible miscarriage of justice of imprisoning a defendant who should be hospitalized is a consideration that "far outweigh[s]” the fear that a jury would compromise its integrity and render a verdict based on factors other than the evidence. Id., p 720.
We quoted with approval the following rationale from Lyles v United States, 103 US App DC 22, 25; 254 F2d 725 (1957), cert den 356 US 961 (1958):
"This point arises under the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the problem before us. The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955 [69 Stat 710; DC Code § 24-301 (1951) (Supp 5)]. It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.” 382 Mich 719-720.
This Court held that in trials "where the defense of insanity is present and that issue is submissible by the proofs, the defendant, upon his own timely request, or upon request of the jury, shall be entitled to an instruction in accord with the rule of Lyles.” Id., pp 720-721.
At the time Cole was decided, the commitment procedure for persons acquitted by reason of insanity provided in part:
"Any person, who is tried for a crime and is acquitted by the court or jury by reason of insanity, shall be committed immediately by order of the court to the department of mental health for treatment in an appropriate state hospital, until discharged .... The person shall not be released on convalescent care or final discharge without being evaluated and recommended for release by the center for forensic psychiatry.” MCL 767.27b; MSA 28.966(12).
Effective in 1975, the Legislature passed the Mental Health Code which replaced most of the previous applicable statutes, including the dispositional statute in effect at the time Cole was decided. The statutory provisions for the disposition of a person found not guilty by reason of insanity are much more complex under the Mental Health Code. For example, the general dispositional statute, MCL 330.2050; MSA 14.800(1050), provides:
"(1) The court shall immediately commit any person who is acquitted of a criminal charge by reason of insanity to the custody of the center for forensic psychiatry, for a period not to exceed 60 days. The court shall forward to the center a full report, in the form of a settled record, of the facts concerning the crime which the patient was found to have committed but of which he was acquitted by reason of insanity. The center shall thoroughly examine and evaluate the present mental condition of the person in order to reach an opinion on whether the person meets the criteria of a person requiring treatment or for judicial admission set forth in section 401 or 515.
"(2) Within the 60-day period the center shall file a report with the court, prosecuting attorney, and defense counsel. The report shall contain a summary of the crime which the patient committed but of which he was acquitted by reason of insanity and an opinion as to whether the person meets the criteria of a person requiring treatment or for judicial admission as defined by section 401 or 515, and the facts upon which the opinion is based. If the opinion stated is that the person is a person requiring treatment, the report shall be accompanied by certificates from 2 physicians, at least 1 of whom shall be a psychiatrist, which conform to the requirements of section 400(j).
"(3) After receipt of the report, the court may direct the prosecuting attorney to file a petition pursuant to section 434 or 516 for an order of hospitalization or an order of admission to a facility with the probate court of the person’s county of residence or of the county in which the criminal trial was held. Any certificates that accompanied the report of the center may be filed with the petition, and shall be sufficient to cause a hearing to be held pursuant to section 451 even if they were not executed within 72 hours of the filing of the petition. The report from the court containing the facts concerning the crime for which he was acquitted by reason of insanity shall be admissible in the hearings.
"(4) If the report states the opinion that the person meets the criteria of a person requiring treatment or for judicial admission, and if a petition is to be filed pursuant to subsection (3), the center may retain the person pending a hearing on the petition. If a petition is not to be filed, the prosecutor shall notify the center in writing. The center, upon receipt of the notification, shall cause the person to be discharged.
"(5) The release provisions of sections 476 to 479 of this act shall apply to a person found to have committed a crime by a court or jury, but who is acquitted by reason of insanity, except that a person shall not be discharged or placed on leave without first being evaluated and recommended for discharge or leave by the department’s program for forensic psychiatry, and authorized leave or absence from the hospital may be extended for a period of 5 years.”
CJI 7:8:08, in its attempt to inform the jury of the disposition of a person found not guilty by reason of insanity, paraphrases and summarizes the portions of the above statute believed to be relevant and necessary to give the jurors an understanding of events should it return the verdict at issue. However, the ratio decidendi of Lyles is that "the jury has the right to know the meaning” of the verdict of not guilty by reason of insanity. 103 US App DC 25. (Emphasis added.) There are, however, so many contingencies written into the statutory procedure that neither a jury nor any other person could predict the disposition of the defendant. For example, it cannot be known whether the center for forensic psychiatry will find that the defendant meets the criteria of a person requiring treatment or for judicial admission. Even if such a finding is made, it cannot be known if the court will direct the prosecuting attorney to file a petition for an order of hospitalization or an order of admission. If a petition is filed, there is no way of knowing whether it will be dismissed. There is also no way of knowing, assuming a petition is filed, whether the center will retain the defendant pending a hearing on the petition.
In Garrett v State, 320 A2d 745 (Del, 1974), the Delaware Supreme Court discussed the propriety of a Lyles-type instruction. As in Michigan’s statutory scheme, the Delaware disposition provisions gave officials discretion on whether to take steps to assure the defendant would be confined. The court offered the following analysis:
"The ultimate disposition of the defendant after a verdict of not guilty by reason of mental illness, could not have been explained to the jury with any reasonable degree of certainty. Reading the text of, or paraphrasing [the dispositional statute] would have left the jury uncertain and confused, premised as it is upon (1) the discretion of the Attorney General in moving for commitment; (2) the discretion of the Superior Court in acting upon such motion; and (3) the discretion of the Superior Court in freeing the defendant 'whenever it is satisfied that the public safety will not be thereby endangered.’ Jury uncertainty and confusion as to the ultimate disposition of the defendant in the instant case, [under an instruction in accord with the disposition statute], would have been increased by the opinion testimony of representatives of the Delaware State Hospital at the trial that the defendant was not mentally ill at the time of the offense, thus raising the possibility and probability of an early recommendation to the Superior Court that prompt release of the defendant from the Hospital would not endanger public safety.” 320 A2d 749-750.
The court held that no "instruction could have been formulated in this case under [the dispositional statute] with any reasonable degree of clarity and certainty.”* *** Id.
We agree with this reasoning and hold that because of the numerous possible contingencies under the statutory scheme, "no instruction could adequately postulate the impact of such a verdict on the appellant’s future tenure in the institution.” State v Wallace, 333 A2d 72, 79 (Me, 1975).
Assuming it is possible to draft an instruction which completely and accurately describes the disposition to be made of a person found not guilty by reason of insanity, we hold that any attempt to do so is unacceptable. The basic dispositional statute refers, in its text, to nine other statutes, without which it cannot be understood. Some of these referred to statutes in turn refer to other provisions.* ***** If the jury’s "right to know the meaning” of its verdict is to be fulfilled, the jurors would have to be read many of these provisions.
For example, the jurors are not given the statutory definitions of "a person requiring treatment,” MCL 330.1401; MSA 14.800(401), or of whom may be a candidate for judicial admission, MCL 330.1515; MSA 14.800(515). These are the critical definitions upon which the decision to confine or release the defendant will be based. The proponents of the instruction argue that this is largely the jury’s concern when a not guilty by reason of insanity verdict is considered, and yet, inexplicably the jury is not given these definitions. They have no way of knowing the standards upon which the decision to commit or discharge the defendant will be based. If the jury were given these definitions, they would then have four more definitions of mental states to consider besides the ones upon which they would already be properly instructed. Of course, these four added definitions are irrelevant to the issue they are obliged to decide — whether beyond a reasonable doubt the defendant was sane at the time he committed the charged crime.
This illustrates the difficulties that would inevitably occur if we did attempt to explain the detailed statutory scheme to the jury. It also shows that CJI 7:8:08 gives the jury an incomplete understanding of the meaning of its verdict. We hold, therefore, that the alternative of attempting to lead the jury through a labyrinth of complex statutory provisions would be an unwise and unacceptable extension of the exception to the general rule that jurors are not to be concerned with the consequences of their verdict.__
Having decided that it was error to give CJI 7:8:08, we nevertheless affirm the Court of Appeals judgment in each case. It is argued that the instruction, and in particular the "60 days” language, led the juries to believe that appellants would be shortly released if they were found not guilty by reason of insanity. On the other hand, it was asserted in Cole that a jury, if it were not told of a defendant’s disposition, would tend to convict because of the fear that he would be released if found not guilty by reason of insanity. The assertion, that the giving of CJI 7:8:08 makes a guilty verdict more likely than when no dispositional instruction is given is, without information to the contrary, pure speculation. We find no error which requires reversal.
We hold that in all jury instructions given more than 30 days after the filing of this opinion, the jurors shall not be given any information including, but not limited to, CJI 7:8:07 and 7:8:08 regarding the disposition of the defendant after their verdict.
The judgments of the Court of Appeals are affirmed.
Levin and Ryan, JJ., concurred with Brickley, J.
Cavanagh, J., concurred with Brickley, J., only in Gillen.
CJI 7:8:08 provides:
"(1) If you find the defendant committed the act but was not criminally responsible at the time, then he is not guilty by reason of insanity. If you make such a decision, the defendant will be immediately committed to the custody of the Center for Forensic Psychiatry for a period not to exceed sixty days.
"(2) During that time, the statute directs that the Center thoroughly examine and evaluate the present mental condition of the defendant in order to reach an opinion as to whether he is mentally ill and requires medical treatment.
"(3) Within the sixty-day period, the Center will file a report with the Court, prosecuting attorney and defense counsel. If the report states that the person is not mentally ill or does not require treatment, the defendant shall be discharged [from custody],
"(4) If the report finds that the person is mentally ill and does require treatment, the Court may [will] direct the prosecuting attorney to file a petition with the Probate Court for an order of hospitalization or an order of admission to a clinical facility. If the Court so directs, the Center may retain the person pending such hearing.
"(5) If, after a hearing before the Probate Court, the defendant is found not to be mentally ill or not to be a person requiring treatment, the defendant shall be discharged [from custody],
"(6) However, if the person is ordered hospitalized, admitted to a facility or otherwise to receive treatment, he shall not be discharged or placed on leave without prior consultation with the Center for Forensic Psychiatry. Once hospitalized, the defendant will be hospitalized until his mental condition is such that he no longer is judged to require treatment.”
The trial court instructed the jury as follows:
"Now ladies and gentlemen of the jury, I have given you a lot of instructions, a lot of options. You will soon discover they are options. Let me give you some idea of what happens. If you find the Defendant committed the act, and when I use the word in the singular, I mean the singular or plural, since there are two counts. If you find the Defendant committed the act but was not criminally responsible at the time, then he is not guilty by reason of insanity. If you make such a decision, then this Court will immediately commit the Defendant to the custody of the Center for Forensic Society [sic] for a period not to exceed sixty days. During that time, the statute of Michigan directs that the Center thoroughly examine and evaluate the present mental condition of the Defendant, in order to reach an opinion as to whether he is mentally ill and requires medical treatment. Within the sixty day period, the Center will file a report with the Court, the prosecuting attorney and the defense counsel. If the report states that the person is not mentally ill or does not require treatment, the Defendant shall then be discharged from custody. If the report finds that the Defendant is mentally ill and does require treatment, the Court may direct the prosecuting attorney to file a petition with the Probate Court for an order of hospitalization or an order of admission to a clinical facility. If the Court so directs, the Center may then retain the person, pending such hearing. If after such a hearing before the Probate Court the Defendant is found not to be mentally ill or not to be a person requiring such treatment, the Defendant shall then be discharged. However, if the person is ordered hospitalized, admitted to a facility or otherwise to receive treatment, he shall not be discharged or placed on leave without prior consultation with the Center for Forensic Psychiatry. Once hospitalized, the Defendant will be hospitalized until his mental condition is such that he is no longer judged to require treatment.”
Defense counsel requested that CJI 7:8:07 be given. CJI 7:8:07 provides:
"If you find the defendant committed the act but was not criminally responsible at the time, then he is not guilty by reason of insanity. If you make such a decision, the defendant will be immediately committed to the custody of the Center for Forensic Psychiatry for evaluation of his present mental condition and such further medical and legal proceedings as are then deemed necessary.”
Defense counsel asked the trial court to "incorporate” the following language into the 7:8:08 instruction:
"[A] not guilty by reason of insanity [verdict] . . . means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the Court is satisfied, that such a person has recovered his sanity and will not, in a reasonable future, be dangerous to himself or others.”
The Court of Appeals stated that "defense counsel objected to this instruction [7:8:08].” We accept the conclusion that the issue has been preserved for appeal.
CJI 3:1:19 provides:
"(8) Do not concern yourselves during the trial or in your deliberations with what the penalty might be if you should find the defendant guilty. The question of guilty and the question of penalty are decided separately. It is the duty of the judge to fix the penalty whenever a defendant is found guilty. Possible penalties should not influence your decision.”
The use notes accompanying the instruction state that it is not to be used in insanity cases.
As discussed, the dramatic changes in the statutory scheme make the Lyles instruction no longer plausible. We note that even under the previous dispositional statute, courts have had difficulties deciding what is the best way to enable a jury to understand the meaning of its verdict. Obviously many things can become of a defendant once his commitment begins. The question is, how much the jury should be told. See, e.g., People v Wright, 58 Mich App 735; 228 NW2d 807 (1975) (upholding instruction that told the jury a not guilty by reason of insanity verdict would mean the trial court no longer had control over the defendant); People v Widgren, 53 Mich App 375; 220 NW2d 130 (1974) (upholding instruction which told jurors that defendant could be released at any time after commitment if successful with a writ of habeas corpus).
For example, the basic statute refers to MCL 330.1434; MSA 14.800(434) and MCL 330.1516; MSA 14.800(516). These provisions respectively provide:
"Sec. 434. (1) Any person 18 years of age or over may file with the court a petition which asserts that an individual is a person requiring treatment as defined in section 401.
"(2) The petition shall contain the facts which are the basis for the assertion, the names and addresses, if known, of any witnesses to the facts, and, if known, the name and address of the nearest relative or guardian, or, if none, a friend, if known, of the individual.
"(3) The petition shall be accompanied by the certificate of a physician or a psychologist, unless after reasonable effort the petitioner could not secure an examination. If a certificate does not accompany the petition, an affidavit setting forth the reasons an examination could not be secured shall also be filed. The petition may also be accompanied by a second certificate. If 2 certificates accompany the petition, at least 1 certificate shall have been executed by a psychiatrist.
"(4) Any certificate which accompanies a petition shall have been executed within 72 hours before the filing of the petition, and after personal examination of the individual.”
"Sec. 516. (1) Any person found suitable by the court may file with the court a petition which asserts that an individual meets the criteria for judicial admission specified in section 515.
"(2) The petition shall contain the alleged facts which are the basis for the assertion, the names and addresses, if known, of any witnesses to alleged and relevant facts, and if known the name and address of the nearest relative or guardian of the individual.
"(3) If the petition appears on its face to be sufficient, the court shall order that the individual be examined and a report be prepared. To this end, the court shall appoint a qualified person who may but need not be an employee of the state, the county, or the court to arrange for the examination, to prepare the report, and to file it with the court.
"(4) If it appears to the court that the individual will not comply with an order of examination under subsection (3), the court may order a peace officer to take the individual into protective custody and transport him immediately to a facility or other suitable place for up to 48 hours for the ordered examination.
"(5) After examination the individual shall be allowed to return home unless it appears to the court that he requires immediate admission to a facility in order to prevent physical harm to himself or others pending a hearing, in which case the court shall enter an order to that effect. If an individual is ordered admitted pursuant to this subsection, not later than 12 hours after he is admitted the facility shall cause him to receive a copy of the petition, a copy of the report, and a written statement in simple terms explaining his rights to a preliminary hearing pursuant to subsection (8), to be present at the preliminary hearing and to be represented by legal counsel, if one physician and one psychologist or 2 physicians conclude that the individual meets the criteria for judicial admission.
"(6) The report required by subsection (3) shall contain:
"(a) Evaluation of the individual’s mental, physical, social, and educational condition.
"(b) A conclusion as to whether the individual meets the criteria for judicial admission specified in section 515.
"(c) A list of available forms of care and treatment which may serve as an alternative to admission to a facility.
"(d) A judgment as to the most appropriate living arrangement for the individual.
"(e) The signatures of one physician and one psychologist or 2 physicians who performed examinations serving in part as the basis of the report.
"(7) The petition shall be dismissed by the court unless one physician and one psychologist or 2 physicians conclude, and that conclusion is stated in the report, that the individual meets the criteria for judicial admission.
"(8) An individual whose admission was ordered pursuant to subsection (5) is entitled to a preliminary hearing as follows:
"(a) Within 5 days after an individual is admitted to a facility, a preliminary hearing shall be convened to determine whether there is probable cause to believe that the individual meets the criteria for judicial admission.
"(b) The court shall cause timely notice of the time and place of the preliminary hearing and of the grounds, reasons, and necessity for his admission to be given to the individual.”
Since the basic statute states that the "prosecuting attorney [is] to file a petition pursuant to [these] sections[s],” these sections must be read before one can understand the basic statute.
The general statute also states that "[t]he release provisions of this act, [MCL 330.1476-330.1479; MSA 14.800(476)-14.800(479)], shall apply to a person . . . who is acquitted by reason of insanity.” Clearly, one must refer to the specific release provisions in order to understand the general statute. Those statutes provide:
"Sec. 476. (1) The director may at any time discharge a voluntarily or judicially hospitalized patient whom the director deems clinically suitable for discharge.
"(2) The director shall discharge a patient hospitalized by court order when the patient’s mental condition is such that he no longer meets the criteria of a person requiring treatment.
"(3) If a patient discharged pursuant to subsection (1) or (2) has been hospitalized by court order, or if court proceedings are pending, the court shall be notified of the discharge by the hospital.”
"Sec. 477. (1) A person responsible for providing treatment to an individual ordered to undergo a program of alternative treatment or a program of combined hospitalization and alternative treatment under section 468(2)(c) or (d) may terminate the treatment to the individual if the provider of the treatment considers the individual clinically suitable for termination of treatment, and shall terminate the treatment when the individual’s mental condition is such that he or she no longer meets the criteria of a person requiring treatment.
"(2) Upon termination of alternative treatment or combined hospitalization and alternative treatment, the court shall be notified by the provider of the treatment.
"Sec. 478. If, upon the discharge of a patient hospitalized by court order or the termination of alternative treatment to an individual receiving alternative treatment pursuant to this chapter, it is determined that the individual would benefit from the receipt of further treatment, the hospital or provider of alternative treatment shall offer him appropriate treatment on a voluntary basis, or shall aid him to obtain treatment from another source.
"Sec. 479. All leaves or absences from a hospital, other than release or discharge, and all revocations of leaves and absences under section 408, shall be governed in accordance with rules or procedures established by the department or the hospital; except that a director shall discharge any patient who has been hospitalized subject to an order of continuing hospitalization and who has been on an authorized leave or absence from the hospital for a continuous period of one year. Upon such discharge, the director shall notify the court.”
For example, MCL 330.2050; MSA 14.800(1050) refers in its text to MCL 330.1477; MSA 14.800(477) which in turn refers in its text to MCL 330.1468(2)(c); MSA 14.800(468)(2)(c).
These statutes are more than tangentially related to the meaning of a not guilty by reason of insanity verdict. For example, the statutes discussed in footnote 7, relate to the circumstances upon which a person may receive treatment other than hospitalization. If, as the argument goes, the jurors are dominated by the fear that their not guilty by reason of insanity verdict will result in the defendant’s non-confinement, then they should be told under what circumstances he may receive treatment other than hospitalization.
MCL 330.1401; MSA 14.800(401) provides:
"Sec. 401. As used in this chapter, 'person requiring treatment’ means (a), (b), or (c):
"(a) A person who is mentally ill, and who as a result of that mental illness can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself or another person, and who has engaged in an act or acts or made significant threats that are substantially supportive of the expectation.
"(b) A person who is mentally ill, and who as a result of that mental illness is unable to attend to those of his basic physical needs such as food, clothing, or shelter that must be attended to in order for him to avoid serious harm in the near future, and who has demonstrated that inability by failing to attend to those basic physical needs.
"(c) A person who is mentally ill, whose judgment is so impaired that he is unable to understand his need for treatment and whose continued behavior as the result of this mental illness can reasonably be expected, on the basis of competent medical opinion, to result in significant physical harm to himself or others. This person shall be hospitalized only under the provisions of sections 434 through 438 of this act.”
MCL 330.1515; MSA 14.800(515) provides:
"Sec. 515. A court may order the admission of an individual 18 years of age or older who:
"(a) Is mentally retarded; and
"(b) Can be reasonably expected within the near future to intentionally or unintentionally seriously physically injure himself or another person, and has overtly acted in a manner substantially supportive of that expectation.”
See CJI 7:8:01.
We phrase our analysis as an alternative between the instruction given and no instruction at all because we agree with the Court of Appeals in Gillen’s case that the trial court was not obliged to give the inaccurate instruction requested. In Goad’s trial, defense counsel objected to CJI 7:8:08 and instead requested that CJI 7:8:07 be given. This latter instruction is even less complete and accurate than the former. It does not tell the jurors the "meaning” of their verdict and is therefore improper. Each trial court thus had the choice between giving CJI 7:8:08 or of construing the defense counsel alternate requests as objections and giving no dispositional instruction. | [
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Cavanagh, J.
Plaintiffs are residents of the defendant Charlotte Public School District. They pay property taxes to the district for school operating purposes. In the 1981-1982 school year, plaintiffs enrolled their daughter Brenda as a full-time sixth grade student in the Charlotte Christian Academy, a private nondenominational school.
Since the academy does not offer a band course, plaintiffs attempted to enroll Brenda in the sixth grade band course offered in defendant’s public schools. Brenda has her own musical instrument and plaintiffs are willing to transport her to and from class. Brenda would attend band at the time and place which this course is provided to full-time public school students. Defendant admits that there is room in the class for Brenda and that it would receive state school aid for her part-time attendance. Nevertheless, defendant refused to permit her enrollment because it does not offer any shared time courses or permit dual enrollment. Its policy is to limit enrollment in all classes to full-time students only. However, defendant allows its public school students to attend classes at local community colleges during the school day for credit.
Plaintiffs filed suit to compel defendant school district to enroll Brenda in the band class. They argued that Brenda’s exclusion violated her statutory right to attend public school in the school district in which she resides. MCL 380.1147; MSA 15.41147. In addition, defendant’s policy allegedly violated plaintiffs’ First Amendment right to freely exercise their religious beliefs and their Fourteenth Amendment right to equal protection under the law. Following a bench trial, the circuit court ruled that Michigan public school systems are not required to offer shared time instruction and that plaintiffs’ First and Fourteenth Amendment rights had not been violated.
Plaintiffs appealed, and the Attorney General was allowed to intervene in their behalf. The Court of Appeals affirmed, over a lengthy dissent. Snyder v Charlotte Public School Dist, 123 Mich App 56; 333 NW2d 542 (1983). This Court granted plaintiffs’ and the Attorney General’s application for leave to appeal. 417 Mich 1041 (1983). The Michigan Education Association, Michigan Federation of Teachers, Michigan Association of School Boards, and Michigan Association of Nonpublic Schools have filed amici curiae briefs.
I
"Shared time” instruction was aptly described in Traverse City School Dist v Attorney General,. 384 Mich 390, 411, fn 3; 185 NW2d 9 (1971):
" 'As generally used in current literature in the field of education, the term "shared time” means an arrangement for pupils enrolled in nonpublic elementary or secondary schools to attend public schools for in struction in certain subjects .... The shared time provision is or would be for public school instruction for parochial school pupils in subjects widely (but not universally) regarded as being mainly or entirely secular, such as laboratory science and home economics.’
"As this quotation indicates, shared time is an operation whereby the public school district makes available courses in its general curriculum to both public and nonpublic school students normally on the premises of the public school.”
There are three significant differences between shared time and direct financial aid to nonpublic schools (also known as parochiaid):
"First, under parochiaid the public funds are paid to a private agency whereas under shared time they are paid to a public agency. Second, parochiaid permitted the private school to choose and to control a lay teacher whereas under shared time the public school district chooses and controls the teacher. Thirdly, parochiaid permitted the private school to choose the subjects to be taught, so long as they are secular, whereas shared time means the public school system prescribes the public school subjects. These differences in control are legally significant.
"Obviously, a shared time program offered on the premises of the public school is under the complete control of the public school district . . . .” Id., pp 413-414.
II
Plaintiffs arpie that MCL 380.1147; MSA 15.41147 establishes the statutory right of school-age children to attend public schools in the district in which they reside. The Legislature has not conditioned (or authorized local boards of education to condition) this right upon full-time attendance. Plaintiffs conclude that Brenda must be allowed to attend all or part of the public school program. They criticize the Court of Appeals majority for limiting this statutory right because of the speculative potential for excessive entanglement of church and state which shared time allegedly presents.
Defendant responds by citing numerous statutory provisions which authorize local boards of education to set curriculum and determine the operating policies of public school districts. Courts may not disturb a board’s policy decision unless it is arbitrary and unreasonable. Defendant maintains that it has adequately justified its full-time enrollment policy. Defendant asserts that part-time students would dilute the school program for full-time students and take a disproportionate amount of scarce resources; full-time attendance in a single school is administratively and educationally advantageous; part-time admission would cause an overall decline in full-time enrollment, resulting in decreased state aid; and extensive coordination between public and private schools would be required.
A
Although public education is not a fundamental right granted by the federal constitution, it is not merely some governmental benefit which is indistinguishable from other forms of social welfare legislation. Plyler v Doe, 457 US 202, 221; 102 S Ct 2382; 72 L Ed 2d 786 (1982). See also San Antonio Independent School Dist v Rodriguez, 411 US 1, 30; 93 S Ct 1278; 36 L Ed 2d 16 (1973). "[Education is perhaps the most important function of state and local governments.” Brown v Topeka Bd of Ed, 347 US 483, 493; 74 S Ct 686; 98 L Ed 873 (1954). Whenever the state has undertaken to provide education to its people, this right must be made available to all on equal terms. Id. See also San Antonio, supra, pp 29-30.
This state’s policy of encouraging education is set forth in Const 1963, art 8, § 1:
"Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
This provision evidences a settled state purpose of providing, fostering, and protecting educational facilities for all. Dennis v Wrigley, 175 Mich 621, 625; 141 NW 605 (1913).
Const 1963, art 8, § 2 provides for the establishment of the public elementary and secondary school system:
"The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.”
See also MCL 380.1146; MSA 15.41146.
The statutory right of each school-age child to attend public school in the district in which he resides is set forth in § 1147 of the School Code of 1976:
"(1) A person, resident of a school district not maintaining a kindergarten and at least 5 years of age on the first day of enrollment of the school year, shall have a right to attend school in the district.
"(2) In a school district where provision is made for kindergarten work, a child, resident of the district, is entitled to enroll in the kindergarten if the child is at least 5 years of age on December 1 of the school year of enrollment. In a school district which has semiannual promotions, a child, resident of the district, is entitled to enroll in kindergarten for the second semester if the child is at least 5 years of age on March 1 of the year of enrollment.” MCL 380.1147; MSA 15.41147. (Emphasis added.)
The prior school codes contained substantially similar language. These earlier provisions have been interpreted to prevent a school board from excluding any resident because of race, color, or religious beliefs and to provide an equal right to all schools, irrespective of such distinctions. People ex rel Workman v Detroit Bd of Ed, 18 Mich 400, 410 (1869). The 1976 code was primarily intended to be a recodification of existing law. See 1976 Journal of the Senate 2622.
Parents and guardians have a corresponding duty to send their children to public schools, subject to several exceptions:
“(1) Except as provided in subsections (2) and (3), every parent, guardian, or other person in this state having control and charge of a child from the age of 6 to the child’s sixteenth birthday, shall send that child to the public schools during the entire school year. The child’s attendance shall be continuous and consecutive for the school year fixed by the school district in which the child is enrolled. In a school district which maintains school during the entire calendar year and in which the school year is divided into quarters, a child shall not be compelled to attend the public school more than 3 quarters in 1 calendar year, but a child shall not be absent for 2 consecutive quarters.
"(3) A child shall not be required to attend the public schools in the following cases:
"(a) A child who is attending regularly and is being taught in a state approved nonpublic school, which teaches subjects comparable to those taught in the public schools to children of corresponding age and grade, as determined by the course of study for the public schools of the district within which the nonpublic school is located.” MCL 380.1561; MSA 15.41561.
Section 1561(3)(a) recognizes the constitutional right of parents to send their children to either public or private schools. See Pierce v Society of Sisters, 268 US 510; 45 S Ct 571; 69 L Ed 1070 (1925).
General supervision over public education is vested in the State Board of Education. Const 1963, art 8, § 3. The state may establish school curricula either by statute or by delegating its authority to local school boards. Mercer v Michigan State Bd of Ed, 379 F Supp 580, 585 (ED Mich, 1974), aff'd 419 US 1081; 95 S Ct 673; 42 L Ed 2d 678 (1974). Local school districts and officers, however, possess only those powers which statutes expressly, or by reasonably necessary implication, grant to them. Senghas v L’Anse Creuse Public Schools, 368 Mich 557, 560; 118 NW2d 975 (1962); Jacox v Bd of Ed of Van Buren Consolidated School Dist, 293 Mich 126, 128; 291 NW2d 247 (1940).
Sections 1282 and 1300 of the School Code set forth some of those duties and powers:
"The board of a school district shall establish and carry on the grades, schools, and departments it deems necessary or desirable for the maintenance and improvement of the schools, determine the courses of study to be pursued, and cause the pupils attending school in the district to be taught in the schools or departments the board deems expedient.” MCL 380.1282; MSA 15.41282.
"The board of a school district shall make reasonable regulations relative to anything necessary for the proper establishment, maintenance, management, and carrying on of the public schools of the district, including regulations relative to the conduct of pupils concerning their safety while in attendance at school or enroute to and from school.” MCL 380.1300; MSA 15.41300.
A school board’s authority to offer shared time instruction is derived in particular from § 1282. See Traverse City, supra, 384 Mich 411, fn 3.
In reviewing a school board’s decision, a court cannot substitute its judgment for that of the board. Its inquiry is limited to whether the board’s actions were arbitrary and unreasonable. The actions are presumed to be reasonable and proper unless there is a clear showing of abuse. Hiers v Detroit Superintendent of Schools, 376 Mich 225, 234-235; 136 NW2d 10 (1965).
There is no legislation which specifically requires or limits shared time courses or dual enroll- merit. Nevertheless, shared time has been an accepted method of education in this state for over 60 years. Traverse City, supra, p 407, fn 2. The Legislature has acknowledged shared time instruction in the State School Aid Act of 1979 by authorizing aid to school districts for nonpublic school children who attend public schools part-time. See MCL 388.1606, 388.1711; MSA 15.1919(906), 15.1919(1011); 1979 AC, R 340.6(b), 1984 AACS, R 340.7(2). See also Morton v Chicago Bd of Ed, 69 Ill App 2d 38, 49; 216 NE2d 305 (1966).
In addition, the Legislature has not required attendance in either a public or private school for the entire school day. In fact, public school students are allowed to attend religious instruction classes away from the public school during the school day for up to two class hours per week. MCL 380.1561(3)(e); MSA 15.41561(3)(e). (This is traditionally referred to as "released time.”)
B
In Traverse City, this Court ruled on the constitutionality of Proposal C, the amendment to Const 1963, art 8, § 2, which was ratified in the 1970 referendum. This "anti-parochiaid” amendment prohibited the direct or indirect use of public funds to aid or maintain a nonpublic school:
"No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, preelementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students. The legislature may provide for the transportation of students to and from any school.” (Emphasis added.)
The Attorney General construed Proposal C to prohibit shared time instruction at public schools. OAG 1969-1970, No 4715, p 183 (November 3, 1970). In an opinion written by Justice Williams, this Court found this to be "a shocking result” and struck down the above-emphasized language. Traverse City, supra, p 412. In a footnote, the Court stated that the question presented was "whether in certain situations state aid to nonpublic schools or their pupils is mandatory ” Id., p 431, fn 19. After concluding that banning shared time instruction would violate the federal Equal Protection and Free Exercise Clauses, the Court stated:
"This does not mean that a public school district must offer shared time instruction or auxiliary services; it means that if it does offer them to public school children at the public school, nonpublic school students also have a right to receive them at the public school.” Id., p 433.
The parties argue over the meaning of this language. Plaintiffs interpret it to mean that a school board need not offer a particular class, but, once it decides to do so, nonpublic school children have the right to attend. Defendant argues that the Traverse City Court did not impose mandatory-shared time instruction for every class offered in the district. If the district decides to offer a class on a shared time basis, then all nonpublic school children have the right to attend regardless of their religious affiliation. _
Justice Adams’ partial concurrence in Traverse City shows that plaintiffs’ interpretation is correct:
"I agree with Justice Williams that Proposal C does not prohibit shared-time instruction for private school students in the public schools.
"[Programs offered in the public school [must] be made available to all students, whether from public or private schools, on an equal basis.” Id., pp 439-440.
Plaintiffs also persuasively argue that if Michigan voters could not prohibit shared time statewide by Proposal C, a local school board should not be able to do so in their district by a full-time enrollment policy.
Note, however, that the parties in Traverse City did not raise a statutory argument for or against shared time instruction. The decision was based entirely on federal constitutional law. Although Traverse City supports plaintiffs’ constitutional arguments, we prefer to base our decision on § 1147 of the School Code, since it is well established that this Court will decline to address federal constitutional issues if state statutory relief is available.
C
Under § 1147, public schools are open to all residents of the school district who are at least five years old. This statutory right to public education is not conditioned upon full-time attendance. As previously noted, public school students may be excused for up to two hours per week for religious instruction. Defendant school district allows its high school students to attend community college classes during the school day for high school credit. Many public schools also have work-study programs and educational arrangements with vocational and artistic institutions. Such practices acknowledge the possibility that a child may receive his or her education from more than one institution.
Defendant school district argues that § 1282 and § 1300 of the School Code allow it to determine public school curriculum and operating policies. This power allegedly includes the ability to limit enrollment in classes to full-time public school students. This argument necessarily implies that § 1282 and § 1300 supersede a child’s § 1147 right to attend public school. We disagree.
School boards were created for the purpose of organizing, maintaining, and locating schools for the education of all resident school-age children. If part-time instruction would tend to disorganize the school and handicap the school authorities in maintaining the school, then full-time attendance could be required. A school board’s belief that part-time attendance would be detrimental is entitled to consideration and respect.
However, there is no basis for such a conclusion on this record. Arrangements could easily be made to limit disorganization and inconvenience. It would be just as easy, economical, and convenient (if not more so) to open these classes to nonpublic school students as it would be to provide these classes to them if they became full-time public school students. The administrative difficulties are minimal and Brenda’s attendance (as well as other nonpublic school students’ attendance) would ordinarily not be disruptive.
Defendant allows its older students to attend community college classes part-time during the school day. Problems concerning transportation, grading, and coordination of classes have obviously been solved. Other school districts in this state have successfully offered shared time courses for many years without problem. Defendant has not shown how full-time enrollment is "educationally advantageous.” It would seem that a diverse student body would result in new perspectives to problems, stimulate the educational process, and engender respect and understanding for other students’ beliefs and upbringing. Part-time students would still be subject to the school board’s reasonable rules and regulations, thus minimizing disruption and disorganization. Nonpublic school students presumably are as disciplined and interested in learning as their public school counterparts.
Defendant has also not shown that the availability of shared time instruction would result in decreased full-time public school enrollment. Better education and discipline, as well as the instillation of religious and ethical ideals, are generally the reasons parents send their children to nonpublic schools, rather than the availability of shared time instruction. In fact, plaintiffs have continued to send Brenda to a nonpublic school despite the present unavailability of shared time courses because they believe that the school is a better educational and religious experience. The high cost of nonpublic school tuition is also a deciding factor for many parents. Finally, defendant admits that it would receive state school aid for part-time students.
D
Case law from other jurisdictions is scarce. In State ex rel School Dist of Hartington v Nebraska Bd of Ed, 188 Neb 1; 195 NW2d 161 (1972), cert den 409 US 921; 93 S Ct 220; 34 L Ed 2d 182 (1972), the Hartington School District entered into a lease with a Catholic high school to provide instructional activities and services for educationally deprived children in two of the high school’s classrooms. The classes were to be conducted and funded pursuant to the Federal Elementary and Secondary Education Act of 1965. The school district was to have full control over the classrooms and educational program and no religious objects were to be displayed. The program and lease were upheld against state and federal constitutional challenges raised by the state board of education.
The constitutionality of allowing parochial school children to participate in the educational program was also raised. Federal law and regulations required that educationally deprived private school children within the public school district be allowed to participate in programs comparable to those provided to public school children. The Nebraska Supreme Court wrote:
"The Constitution of Nebraska specifically provides that no religious test or qualification shall be required of any student for admission to any public school. Art VII, § 11, Constitution of Nebraska. It would seem that an attempt to prohibit a student enrolled in a parochial school from participating in a program conducted by the public schools, solely because the student was enrolled in a parochial school, would violate this provision of the Constitution of Nebraska.” Hartington, supra, p 4.
The Hartington court also found that this "aid” was directed to nonpublic school children and therefore did not violate the federal Establishment Clause. Id., p 5.
The Michigan Constitution does not contain a provision identical to Art VII, § 11 of the Nebraska Constitution. However, Const 1963, art 8, §2, which requires a school district to provide education without religious discrimination, can be interpreted in a similar manner.
We recognize that a contrary conclusion was reached in Thomas v Allegheny County Bd of Ed, 51 Md App 312; 443 A2d 622 (1982). There, plaintiffs were private school students who had participated in an all-county music program offered by the public school board. In 1980, the board limited participation to those students enrolled in the public schools. Plaintiffs raised arguments identical to those raised here. The Maryland Court of Appeals addressed the constitutional arguments first and concluded that plaintiffs’ rights under the Free Exercise and Equal Protection Clauses had not been violated.
The Thomas court then analyzed § 7-101(a) of the education code, which provided that all individuals who are five years old and under twenty-one shall be admitted free of charge to Maryland public schools. Plaintiffs argued that since they were county residents and within the specified age limits, they were entitled to be admitted to the public schools or any portion thereof. The court refused to adopt such a "strained construction” of the statute. It was noted that under § 4-107, the board of education was authorized to maintain a reasonably uniform system of public schools and to determine the educational policies of the county school system. The Thomas court admitted that the administrative effect of allowing the participation of private school students in the band program appeared "trivial.” However, it was particularly worried that if plaintiffs’ position were adopted, there would be an unreasonable burden on the efficient administration of the public school system. It concluded that the legislature or school board could permit shared time instruction, but the court could not mandate enrollment on the basis of a strained statutory interpretation. Id., pp 316-317, 319-320.
We do not believe that our interpretation of § 1147 is strained. Allowing Brenda and other nonpublic school students to participate in public school classes will not place an unreasonable burden on the public school system. As in Thomas, we find the administrative details involved in shared time instruction to be trivial, especially where a statutory right to such instruction exists. Defendant readily admits that it would have to educate these same children full time if they and their parents decided to forego private school education. Private schools lessen the educational burdens of the public school system and substantially relieve the tax burden incident to the operation of the public schools.
E
As previously noted, part-time students would be subject to the public school’s reasonable rules and regulations as to conduct, attendance, homework, etc. Normally, the school board would determine the curriculum, when and where classes are to be offered and the number of students that can be accommodated. Since the school board has a duty to provide shared time instruction, this necessarily implies that it must provide "reasonable access” to the classes. This case does not present such problems — the band course is offered in the middle of the school day, defendant admits that it has room in the class for Brenda, and plaintiffs will provide Brenda’s transportation to and from class.
However, not every class offered by a public school must be made available on a shared time basis. In order to meet the compulsory attendance laws, a nonpublic school child must attend "a state approved nonpublic school, which teaches subjects comparable to those taught in the public schools to children of corresponding age and grade . . . .” MCL 380.1561(3)(a); MSA 15.41561(3)(a). This im plies that the nonpublic school must provide a "core curriculum” for its students, such as basic reading, mathematics, writing, English, etc. If shared time instruction were required for all courses, it would be possible for a nonpublic school to offer a full curriculum to its students while conducting only a small percentage of the classes at the nonpublic school. This would thwart the Legislature’s requirement that nonpublic and public schools offer comparable basic education to their respective students. More importantly, if public schools can be required to satisfy in any way a parochial school’s statutory responsibility to provide a core curriculum to its students, this might constitute impermissible direct aid to the parochial school, rather than legitimate aid to the students which incidentally benefits the parochial school. See Americans United for Separation of Church & State v Porter, 485 F Supp 432, 437 (WD Mich, 1980), and Section III, infra.
Section 1561(3)(a) does not require that the nonpublic schools offer identical courses of instruction. If this were so, shared time would not be necessary. Thus, "nonessential elective courses,” such as band, art, domestic science, shop, advanced math, and science classes, etc., need not be taught in nonpublic schools. These are the types of courses that have traditionally been offered on a shared time basis. Thus, once these types of courses are offered to public school students in the district, they must also be offered to resident nonpublic school students.
Ill
Defendant and amici curiae do not contend that teaching shared time courses at public schools violates the federal Establishment Clause. However, the Court of Appeals majority denied plaintiffs relief in part because it believed that such a violation existed. The majority stated that the trial testimony indicated that implementation of a shared time program would require extensive coordination between public and nonpublic schools. This continuing need for surveillance over the integration of public and nonpublic curricula and functions supposedly presented too great a potential for excessive entanglement. The majority concluded that Brenda’s statutory right to attend courses at public schools was subject to the limitations of the First Amendment. It was also conjectured that if Brenda had a right to attend band classes, this right would extend to other classes without restriction. Such a situation would be similar to that struck down in Americans United for Separation of Church & State v Porter, 485 F Supp 432 (WD Mich, 1980), where a parochial school was able to offer a full curriculum via shared time programs taught at the school. Snyder, supra, 123 Mich App 66-67.
The Traverse City Court stated that shared time in and of itself does not create unconstitutional religious entanglements, although special circumstances might create such problems. Traverse City, supra, 384 Mich 417. Although the Court did not engage in a formal Establishment Clause analysis, such an analysis reveals that no violation exists where shared time instruction is conducted on public school premises.
A
The Establishment Clause of the First Amend ment commands that a state "shall make no law respecting an establishment of religion . . . .” The Establishment Clause forbids the states and federal government from setting up a church, passing laws which aid one or all religions or prefer one religion over another, and levying a tax to support any religious activities or institutions. Everson v Ewing Twp Bd of Ed, 330 US 1, 15-16; 67 S Ct 504; 91 L Ed 711 (1946). It was designed to prevent sponsorship, financial support, and active involvement of the state in religious activity. Walz v New York City Tax Comm, 397 US 664, 668; 90 S Ct 1409; 25 L Ed 2d 697 (1970).
However, total separation is not possible in an absolute sense; some relationship between church and state is inevitable. Lemon v Kurtzman, 403 US 602, 614; 91 S Ct 2105; 29 L Ed 2d 745 (1971). In every Establishment Clause case, a court must reconcile the inescapable tension between preventing unnecessary intrusion of either the church or state into the precincts of the other and the reality that total separation is not possible. Lynch v Donnelly, 465 US 668, 672; 104 S Ct 1355; 79 L Ed 2d 604 (1984). Indeed, total separation is not necessarily desirable. Committee for Public Education & Religious Liberty v Nyquist, 413 US 756, 760; 93 S Ct 2955; 37 L Ed 2d 948 (1973). The constitution requires the state to accommodate all religions, not merely tolerate them, and forbids hostility toward any. "Callous indifference” was never intended by the Establishment Clause and may clash with the dictates of the Free Exercise Clause. Lynch, supra, p 673; People ex rel McCollum v Dist No 71 Bd of Ed, 333 US 203, 211-212; 68 S Ct 461; 92 L Ed 649 (1948). See also Zorach v Clauson, 343 US 306, 312-315; 72 S Ct 679; 96 L Ed 954 (1952).
Traditionally, a three-part test has been employed in analyzing Establishment Clause cases:
"In the line-drawing process we have often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion.” Lynch, supra, p 679.
See also Lemon, supra, pp 612-613.
However, no single test or criterion is controlling. The Establishment Clause is not a precise, detailed provision capable of ready application. Lynch, supra, p 678. The clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship,” rather than an absolute "wall.” Lemon, supra, p 614.
B
Most legislation or governmental action can survive the "secular purpose” test. The purpose need not be exclusively secular. Even where the benefits to religion appear substantial, there is no conflict with the Establishment Clause unless it is clear that the action was motivated wholly by religious considerations. Lynch, supra, pp 680, 681, and fn 6. See also Mueller v Allen, 463 US 388, 394-395; 103 S Ct 3062; 77 L Ed 2d 721 (1983).
Shared time instruction clearly is not intended to benefit one or all religions. See Americans United for Separation of Church & State v Grand Rapids School Dist, 546 F Supp 1071, 1085 (WD Mich, 1982), aff'd 718 F2d 1389 (CA 6, 1983), cert gtd sub nom Grand Rapids School Dist v Ball, 465 US 1064; 104 S Ct 1412; 79 L Ed 2d 739 (1984). Under § 1147, all nonpublic school students have an opportunity to enroll in shared time courses, even if their school is not religiously oriented. The purpose is clearly secular — to provide educational opportunities at public schools to all resident school-age children who are statutorily entitled to them and who are not currently receiving them.
C
As to the "primary effect” test, two interrelated inquiries have developed. The challenged governmental action must have a primary secular effect. In addition, any non-secular effect must be remote, incidental, and indirect. See Nyquist, supra, 413 US 783-784, fn 39; Brandon v Guilderland Bd of Ed, 635 F2d 971, 978 (CA 2, 1980), cert den 454 US 1123; 102 S Ct 970; 71 L Ed 2d 109 (1981); Grand Rapids, supra, 546 F Supp 1088; Porter, supra, 485 F Supp 436. The underlying question is whether a particular policy which is neutrally applied to religious organizations merely accommodates religious interests or impermissibly advances them. Brandon, supra.
The primary effect of shared time instruction is to provide secular public instruction to part-time nonpublic school students. Citizens to Advance Public Education v State Superintendent of Public Instruction, 65 Mich App 168, 176; 237 NW2d 232 (1975), lv den 397 Mich 854 (1976) (hereinafter CAPE). Shared time is merely one way to guarantee each child his or her statutory right to a public school education. This right extends to all nonpublic school children regardless of whether they are enrolled in a sectarian or secular nonpublic school. Ordinarily, benefits or assistance made available to a broad spectrum of citizens without regard to religious affiliation satisfy the "primary effect” test. See Mueller, supra, p 399; Nyquist, supra, p 782, fn 38; Members of Jamestown School Committee v Schmidt, 699 F2d 1, 9 (CA 1, 1983), cert den 464 US 851; 104 S Ct 162; 78 L Ed 2d 148 (1983); Grand Rapids, supra, 546 F Supp 1086.
The fact that shared time instruction allows nonpublic schools to forego offering certain courses, thereby allowing them to expend funds on other parts of their curriculum (including religious studies), does not mean that these schools are directly or immediately benefited. The United States Supreme Court has consistently rejected "the recurrent argument that all aid to [sectarian institutions] is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends. Committee for Public Education & Religious Liberty v Regan, 444 US 646, 658; 100 S Ct 840; 63 L Ed 2d 94 (1980); New York v Cathedral Academy, 434 US 125, 134; 98 S Ct 340; 54 L Ed 2d 346 (1977); Roemer v Maryland Public Works Bd, 426 US 736, 747; 96 S Ct 2337; 49 L Ed 2d 179 (1976); Hunt v McNair, 413 US 734, 743; 93 S Ct 2868; 37 L Ed 2d 923 (1973). Even if defendant had demonstrated that shared time classes encourage attendance at nonpublic schools, this alone would not render shared time unconstitutional. See Central Bd of Ed v Allen, 392 US 236, 244; 88 S Ct 1923; 20 L Ed 2d 1060 (1968); Everson, supra, 330 US 17. "[Not every law that confers an 'indirect,’ 'remote,’ or 'incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.” Lynch, supra, p 683, quoting Nyquist, supra, 413 US 771.
An examination of United States Supreme Court decisions reveals that shared time instruction offered on public school premises is no more beneficial to or an endorsement of religion than other programs or services which have been upheld. These decisions reflect a clear distinction between programs that provide aid directly to nonpublic school students (the so-called "child benefit theory”) and those that either in form or substance provide direct assistance to parochial schools themselves. National Coalition for Public Education & Religious Liberty v Harris, 489 F Supp 1248, 1258 (SD NY, 1980), app dis 449 US 808; 101 S Ct 55; 66 L Ed 2d 11 (1980).
In Everson, supra, pp 17-18, the Court upheld a program which paid the bus fares of all students attending public and nonpublic schools. The rationale was that the state was not contributing money to the nonpublic schools, but was merely ensuring that children were transported safely to and from whatever school they attended.
The constitutionality of statutes authorizing textbook loans directly to both public and private school children has been repeatedly upheld on the grounds that the financial benefit inured to the parents and children, rather than the nonpublic schools. Wolman v Walter, 433 US 229, 238; 97 S Ct 2593; 53 L Ed 2d 714 (1977); Meek v Pittenger, 421 US 349, 362; 95 S Ct 1753; 44 L Ed 2d 217 (1975); Allen, supra, 392 US 244.
Nonpublic schools may also be reimbursed for administering, grading, and reporting the results of standardized academic tests prepared and scored by the state. The rationale is that the state provides such tests to ensure that minimum educational standards are being met. In addition, the nonpublic schools are prevented from using these tests as part of their religious teaching because they cannot control the tests or their results. Wolman, supra, pp 240-241.
A state, as part of its general health and welfare program for all students, can provide school lunches, public health facilities, diagnostic speech and hearing services, police and fire protection, sewage facilities, streets and sidewalks, etc., for nonpublic schools and their students. Such services, facilities, and materials are secular, neutral, and nonideological in nature. Id., p 242; Meek, supra, pp 364-365; Lemon, supra, 403 US 616-617. Thus, in Wolman, the Supreme Court upheld a program whereby speech and hearing diagnostic services were provided to nonpublic school students at nonpublic schools. Unlike teaching or counseling services, diagnostic services were found to have little or no educational content, were not closely associated with the educational mission of the nonpublic schools, and the diagnostician had only limited, objective contact with the students. Wolman, supra, p 244.
Grants to church-sponsored colleges and universities were upheld in Roemer, supra, 426 US 758-759, Hunt, supra, 413 US 743-745, and Tilton v Richardson, 403 US 672, 679-682; 91 S Ct 2091; 29 L Ed 2d 790 (1971). State tax deductions for educational expenses (such as tuition, textbooks, and transportation) incurred by parents of both public and nonpublic students were upheld in Mueller primarily because they were available to all parents. 463 US 397. In Zorach v Clauson, 343 US 306, 315; 72 S Ct 679; 96 L Ed 954 (1952), a "released time” program, whereby public school children were allowed to attend religious classes off campus during the school day, was found constitutional since it was designed to accommodate religion under the Free Exercise Clause.
The Supreme Court has not directly addressed the constitutionality of shared time instruction taught at public schools. In Wolman, supra, pp 247-248, the Court did address the propriety of offering certain therapeutic, guidance, and remedial services at public schools, public centers, and mobile units located off nonpublic school premises:
"We recognize that, unlike the [speech and hearing] diagnostician, the therapist may establish a relationship with the pupil in which there might be opportunities to transmit ideological views. In Meek, the Court acknowledged the danger that publicly employed personnel who provide services analogous to those at issue here might transmit religious instruction and advance religious beliefs in their activities. But, as discussed in Part V, supra, the Court emphasized that this danger arose from the fact that the services were performed in the pervasively sectarian atmosphere of the church-related school. 421 US, at 371. See also Lemon, 403 US, at 618-619. The danger existed there, not because the public employee was likely deliberately to subvert his task to the service of religion, but rather because the pressures of the environment might alter his behavior from its normal course. So long as these types of services are offered at truly religiously neutral locations, the danger perceived in Meek does not arise.
"The fact that a unit on a neutral site on occasion may serve only sectarian pupils does not provoke the same concerns that troubled the Court in Meek. The influence on a therapist’s behavior that is exerted by the fact that he serves a sectarian pupil is qualitatively different from the influence of the pervasive atmosphere of a religious institution. The dangers perceived in Meek arose from the nature of the institution, not from the nature of the pupils.
’’Accordingly, we hold that providing therapeutic and remedial services at a neutral site off the premises of the nonpublic schools will not have the impermissible effect of advancing religion. Neither will there be any excessive entanglement arising from supervision of public employees to insure that they maintain a neutral stance. It can hardly be said that the supervision of public employees performing public functions on public property creates an excessive entanglement between church and state.
This reasoning is equally applicable to shared time instruction offered at public schools.
D
The "excessive entanglement” test encompasses both administrative entanglement and potential political divisiveness along religious lines. See Lynch, supra, pp 683-684; Regan, supra, 444 US 653; Meek, supra, 421 US 372; Lemon, supra, 403 US 615, 620. The trial court never made a specific finding that extensive coordination be tween public and nonpublic schools would be required to implement and maintain shared time programs. Contrary to the Court of Appeals majority’s view, we believe that any administrative entanglement would be minimal. Under this decision, public school boards are allowed to determine independently the courses they wish to offer and the times and places where the courses will be taught (subject to the reasonable access requirement). Local boards may also impose reasonable rules and regulations concerning prerequisite courses, student conduct, discipline, attendance, grading, class size, etc., in order to manage and improve the school. Public school instructors will teach purely secular subjects to classes composed of both public and nonpublic school students. As noted in Wolman, supra, there is no need to supervise public school teachers to ensure the secular content of their instruction. Although occasional communications between public and nonpublic school officials concerning the administrative details involved in shared time instruction will be necessary, such contacts do not violate the Establishment Clause. Jamestown School Committee, supra, 699 F2d 12; Harris, supra, 489 F Supp 1269; CAPE, supra, 65 Mich App 179.
The Court of Appeals majority relied upon cases which involved constitutional challenges to shared time courses offered at nonpublic schools. Such programs were upheld in CAPE and Traverse City, but struck down in Grand Rapids, Porter, Americans United for Separation of Church & State v Paire, 359 F Supp 505 (D NH, 1973), and Americans United for Separation of Church & State v Oakey, 339 F Supp 545 (D Ver, 1972). The Grand Rapids, Porter, and Paire courts struck down the shared time programs in part because the classes were composed of only nonpublic school students who were enrolled full time in the same nonpublic school where the "shared time” courses were being taught. The "public school” teachers either formerly or presently taught in the nonpublic schools. In some cases, there was substantial evidence that the public and nonpublic school authorities carefully coordinated their curricula to prevent duplication of classes and accommodate religious services. Most importantly, the courts were particularly concerned that the teachers would have to be regularly monitored to insure the secular content of their instruction. Such problems do not exist where shared time programs are offered in public schools and comply with rules set forth in this decision.
As to political divisiveness along religious lines, no such inquiry is required unless a direct subsidy to religious schools or institutions is at issue. Lynch, supra, p 684. Even if such an inquiry were warranted, no divisiveness exists. Nonpublic school students from both sectarian and secular institutions have the opportunity to participate in shared time instruction, The present litigation cannot be used as evidence of political divisiveness. Finally, even if some political divisiveness exists, this fact alone cannot serve to invalidate otherwise permissible conduct. Id.
Reversed.
Williams, C.J., and Kavanagh and Levin, JJ., concurred with Cavanagh, J.
1976 PA 451, MCL 380.1 et seq.; MSA 15.4001 et seq.
See 1955 PA 269, § 356; 1949 PA 315, § 9; 1927 PA 319, Pt II, ch 2, § 9; 1881 PA 164, ch III, § 18; 1867 PA 34, § 28.
We agree with the dissent’s observation that § 1147, if read literally, provides that children who live in a school district which does not maintain a kindergarten have a right to attend "school” under subsection (1). If a kindergarten is maintained, however, subsection (2) only entitles children to enroll in kindergarten. The Legislature surely did not intend to deprive children of their right to attend school within their district during succeeding grades simply because the district maintains a kindergarten. The dissent also correctly notes that § 1147 sets forth residency and minimum age requirements for school children. However, the statute is written in terms of the child’s "right” to attend school and "entitlement” to enroll, rather than merely enunciating admissions requirements.
By couching § 1147 in terms of a child’s "right” and "entitlement” to attend school, the Legislature wished to prevent public school districts from arbitrarily refusing admission to children who live in the district and meet the age requirements. Note that under § 1561(1), parents and guardians must send their children to public schools. There is no requirement that the school be in the district in which the child resides. When read together, § 1147 and § 1561 guarantee children the right to attend neighborhood public schools, but gives them the option of obtaining their education at other facilities.
School districts are required to offer to nonpublic school students driver education, MCL 257.811; MSA 9.2511; special education programs for handicapped persons residing in the school district, MCL 380.1751; MSA 15.41751; bus transportation under certain circumstances, MCL 380.1321, 380.1322; MSA 15.41321, 15.41322; and auxiliary services which are being offered to public school students, MCL 380.1296; MSA 15.41296. Auxiliary services are special educational services designed to remedy physical and mental deficiencies and to provide for the physical health and safety of the children. Traverse City, supra, 384 Mich 418-419. Band instruction cannot be considered an auxiliary service since it is not enumerated in § 1296 or any other section. Id., p 420.
The dissent maintains that the Legislature, by statutorily requiring districts to offer only driver training, special education, bus transportation, and auxiliary services to nonpublic school students, thereby evidenced an intent that school districts need not offer other "courses” to nonpublic school children. However, the Traverse City Court stated that these aforementioned services are not educational in nature, but general health, safety, and welfare matters which have only an incidental relation to the instruction of nonpublic school students. Id., p 419. In other words, these statutes do not involve courses of instruction or school enrollment, but merely services which the Legislature wished to extend to all children.
1979 PA 94, MCL 388.1601 et seq.; MSA 15.1919(901) et seq.
Cl. Special District for the Education & Training of Handicapped Children of St Louis County v Wheeler, 408 SW2d 60 (Mo, 1966); 1971 Missouri OAG, No 144 (Missouri compulsory attendance law requires students to attend one school for at least six hours per day; any part-time attendance at a public school by a nonpublic school student must be in addition to the regular six-hour school day).
The amendment was in response to 1970 PA 100, c 2, which authorized payments of public funds to eligible nonpublic schools to pay a portion of the salaries of' lay teachers who taught secular subjects. This legislation was upheld in Advisory Opinion re Constitutionality of PA 1970, No 100, 384 Mich 82; 180 NW2d 265 (1970), app dis 401 US 929; 91 S Ct 938; 28 L Ed 2d 210 (1971). For a complete history of this legislation, see Traverse City, 384 Mich 406-410, fns 1-2.
Similar language was included in the conclusion of Traverse City, p 435:
"2. Proposal C has no prohibitory impact upon shared time instruction wherever offered provided that the ultimate and immediate control of the subject matter, the personnel and the premises are under the public school system authorities and the courses are open to all eligible to attend the public school . . . subject, of course, to the issue of religious entanglement.” (Emphasis added.)
At least one federal court has interpreted Traverse City as meaning that local boards of education have discretionary authority to provide shared time instruction. Americans United for Separation of Church & State v Grand Rapids School Dist, 546 F Supp 1071, 1076 (WD Mich, 1982), aff'd 718 F2d 1389 (CA 6, 1983), cert gtd sub nom Grand Rapids School Dist v Ball, 465 US 1064; 104 S Ct 1412; 79 L Ed 2d 739 (1984). Any similar inference which may be drawn from this author’s opinion in Citizens to Advance Public Education v State Superintendent of Public Instruction, 65 Mich App 168; 237 NW2d 232 (1975), lv den 397 Mich 854 (1976), was not intended.
The Hartington court, relying on Traverse City, also concluded that the federal Free Exercise and Equal Protection Clauses would be violated if nonpublic school children were excluded from public school programs. 188 Neb 5.
The question of requiring shared time instruction was also decided in Commonwealth ex rel Wehrle v Plummer, 21 Pa D 182 (1911), aff'd sub nom Commonwealth ex rel Wehrle v School Dist of Altoona, 241 Pa 224; 88 A 481 (1913). The question presented there was whether nonpublic school students could be deprived of admission to a manual training school maintained by the public school system. The students’ right to admission was upheld solely upon the basis of the Pennsylvania School Code. The code provided that a school district could establish and maintain additional schools and departments, such as manual training schools. Moreover, no pupil could be refused admission to these schools because he was being or had been educated in a nonpublic school. In contrast, Michigan has no similar statutory provision, except for driver’s education, special education classes for the handicapped, and auxiliary services.
Wehrle was cited in a dissenting opinion in Mitchell v Consolidated School Dist No 201, 17 Wash 2d 61; 135 P2d 79, 88 (1943). The Mitchell court struck down a statute which provided bus transportation to nonpublic school children. In a dissenting opinion, Judge Mallery opined that the necessary inference from this position was that a pupil must be enrolled exclusively in a public school before he can use any of its facilities. He rejected this inference based in part on the Washington Constitution, which required that all resident children be educated without discrimination. The holding and language of Wehrle were discussed, but no mention was made of the statutory provision on which Wehrle was decided.
See fn 15.
Both public and nonpublic schools are required to offer regular courses in the federal and state constitution, history, and government. A high school civics class is also required. MCL 380.1166; MSA 15.41166. There are no other courses, however, which a nonpublic school is statutorily required to offer.
The superintendent of public instruction is required to supervise all private, denominational, and parochial schools. MCL 388.551; MSA 15.1921. This section also provides that the courses of study in such schools shall be of the same standard as provided by the general school laws. The state’s regulation of nonpublic school curricula consists of a simple review of the availability of various academic courses. Sheridan Road Baptist Church v Dep’t of Ed, 132 Mich App 1, 6; 348 NW2d 263 (1984), lv den 419 Mich 916 (1984).
The First Amendment was made applicable to the states through the Fourteenth Amendment in Murdock v Pennsylvania, 319 US 105; 63 S Ct 870; 87 L Ed 1292 (1943).
The fact that shared time may also incidentally defray the cost of educational expenses incurred by parents and enables nonpublic schools to continue or upgrade their present curriculum are also legitimate secular purposes. In upholding the constitutionality of a Minnesota statute providing tax deductions for public and private school expenses, the United States Supreme Court stated:
"A state’s decision to defray the cost of educational expenses incurred by parents — regardless of the type of schools their children attend — evidences a purpose that is both secular and understandable. An educated populace is essential to the political and economic health of any community, and a state’s efforts to assist parents in meeting the rising cost of educational expenses plainly serves this secular purpose of ensuring the state’s citizenry is well-educated. Similarly, Minnesota, like other states, could conclude that there is a strong public interest in assuring the continued financial health of private schools, both sectarian and non-sectarian. By educating a substantial number of students, such schools relieve public schools of a correspondingly great burden — to the benefit of all taxpayers. In addition, private schools may serve as a benchmark for public schools, in a manner analogous to the 'TVA yardstick’ for private power companies. As Justice Powell has remarked:
" 'Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States they relieve substantially the tax burden incident to the operation of public schools. The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them. Wolman v Walter, 433 US 229, 226, [sic] 53 L Ed 2d 714, 97 S Ct 2593, 5 Ohio Ops 3d 197 [1977] (Powell, J., concurring in part, concurring in judgment in part, and dissenting in part).’ ” Mueller, supra, p 395.
Cf. Lemon, supra, 403 US 617-623; Meek, supra, 421 US 363-366 (reimbursing religious schools directly for books, instructional materials, and portions of teachers’ salaries related to teaching secular subjects held unconstitutional — the instructional materials and subsidies directly benefited the nonpublic schools, rather than the parents and children; moreover, monitoring the content of the teachers’ instruction to ensure its secular content would engender excessive entanglement and political divisiveness over annual school appropriations). See also Advisory Opinion re Constitutionality of 1974 PA 242, 394 Mich 41, 49; 228 NW2d 772 (1975) (supplying textbooks and supplies to private schools violates Const 1963, art 8, § 2 as enacted by Proposal C).
Cf. Levitt v Committee for Public Education & Religious Liberty, 413 US 472, 480-482; 93 S Ct 2814; 37 L Ed 2d 736 (1973) (reimbursement for teacher-prepared tests unconstitutional because there were no means available to ensure that the tests were free of religious instruction; reimbursement for state-prepared tests also held unconstitutional because it was not specifically restricted to the actual costs incurred in administering and correcting such tests).
Cf. Meek, supra, pp 367, 371, and fn 21 (speech and hearing services which are diagnostic in nature can be offered at nonpublic schools, but auxiliary services cannot because of potential religious entanglement).
Religiously affiliated colleges have consistently been characterized as not being pervasively sectarian, although parochial elementary and secondary schools are so characterized. Harris, supra, 489 F Supp 1258, fn 7. Thus in Nyquist, supra, 413 US 779-780, a "maintenance and repair” provision authorizing unrestricted grants to religious primary and secondary schools was struck down as having an impermissible primary effect of subsidizing and advancing the religious mission of these schools.
See also Walz v New York City Tax Comm, supra (tax exemptions for churches and related buildings upheld). Cf. Sloan v Lemon, 413 US 825, 832; 93 S Ct 2982; 37 L Ed 2d 939 (1973); Nyquist, supra, pp 774-780 (tuition reimbursements and tax credits available only to parents of parochial school students constituted direct aid to parochial schools since they created an incentive to send children to such schools and were intended to preserve and support them.
Cf. McCollum, supra, 333 US 209-210 (board of education’s practice of employing religious teachers to give religious instruction to willing public school students at the public schools held unconstitutional).
However, the Supreme Court has granted certiorari to determine the validity of shared time instruction at nonpublic schools in Grand Rapids, supra.
"14 The purpose of the program is to aid schoolchildren, and the use of convenient local centers is a sensible way to implement the program. Although the public schools may often be used, considerations of safety, distance, and the adequacy of accommodations on occasion will justify the use of public centers or mobile units near the nonpublic school premises. [Appellant’s Brief], at 42. Certainly the Establishment Clause should not be seen as foreclosing a practical response to the logistical difficulties of extending needed and desired aid to all the children of the community.” (Emphasis added.)
The incidental aid provided to nonpublic schools by shared time instruction similarly does not violate Const 1963, art 8, § 2. In 1974 PA 242, supra, 394 Mich 47-49, this Court stated:
"In Traverse City School Dist v Attorney General, 384 Mich 390; 185 NW2d 9 (1971), this Court outlined the impact of Proposal C on various types of educational assistance programs. Proceeding from the premise that the voters in adopting Proposal C were simply intent on outlawing parochiaid, the Court found it unnecessary to adopt 'a strict "no benefits, primary or incidental” rule.’ 384 Mich 390, 413. Insteád, the Court favored a reasonable construction of the amendment’s language. Under this construction the Court concluded that shared time programs — if properly controlled by the public school system — and auxiliary services such as health care and remedial reading programs could be provided to private schools consonant with the mandate of proposal C.
"In my opinion the Court reached correct conclusions in the Traverse City School District case because the services examined therein were properly classified as 'incidental’ to a private school’s establishment and existence. (See fn 2, supra.) Such programs as shared time and auxiliary services, to be sure, do help a private school compete in today’s harsh economic climate; but, they are not 'primary’ elements necessary for the school’s survival as an educational institution. These incidental services are useful only to an otherwise viable school and are not the type of services that flout the intent of the electorate expressed through Proposal C.
"2 The Court carried over to the non-support for private school provisions found in Proposal C the construction advanced in Advisory Opinion re Constitutionality of PA 1970, No 100, 384 Mich 82; 180 NW2d 265 (1970), for distinguishing between permissible and impermissible state assistance to parochial schools. Since Proposal C speaks broadly in terms of the support and maintenance of all private schools, I think it is a proper interpretation of the Traverse City School Dist v Attorney General rule to state that Proposal C forbids aid that is a 'primary’ element of the support and maintenance of a private school but permits aid that is only 'incidental’ to the private school’s support and maintenance. 384 Mich 390, 413.”
Lemon, p 615, set forth a three-point test to determine whether excessive entanglement exists:
"In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority.”
This test has been used on occasion (see, e.g., Roemer, supra, 426 US 748), but there are numerous Supreme Court decisions which have essentially ignored it. The test is sufficiently satisfied here. The majority of nonpublic schools are sectarian in nature. However, these schools are only incidentally benefited by shared time instruction. The relationship between the state and religious authorities is minimal and limited to administrative details.
In addition, remedial education offered under the federal Title I programs at nonpublic schools has been upheld in Harris and School Dist of Hartington. See also Wheeler v Barrera, 417 US 402, 426, 428; 94 S Ct 2274; 41 L Ed 2d 159 (1974), modified 422 US 1004; 95 S Ct 2625; 45 L Ed 2d 667 (1975).
There is no evidence that there has been any divisiveness over shared time instruction offered at public schools in the 60 years that it has been conducted in this state. The controversy generated by parochiaid and Proposal C revolved around the issue of direct subsidies to parochial schools, rather than shared time itself. See 1974 PA 242, supra, 394 Mich 47-48; Traverse City, supra, 384 Mich 410, fn 2. We disagree with the Sixth Circuit’s contrary conclusion. See Grand Rapids, supra, 718 F2d 1408. | [
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Cavanagh, J.
The facts in this matter appear undisputed and were succinctly stated by the Court of Appeals:
"The defendant, Firestone Tire & Rubber Company (hereinafter 'Firestone’), is an Ohio corporation with its principal headquarters in Akron, Ohio. Firestone has various retail stores around the country, some of which are run as divisions of Firestone while some are wholly owned or majority-owned subsidiary corporations. In Muskegon, Michigan, Firestone has two outlets; one is operated as a division of Firestone, and the second is Muskegon Firestone Auto Supply and Service Stores, located at 925 Terrace Street, Muskegon, Michigan, hereinafter termed 'Muskegon Firestone’. Muskegon Firestone was a wholly owned subsidiary corporation at the time plaintiff’s cause of action arose.
"Plaintiff James Wells worked at Muskegon Firestone and on October 21, 1971, while acting in the course of his employment changing a tube and tire on a truck rim manufactured by Firestone, the rim blew apart, injuring him seriously. Muskegon Firestone was originally a dealership but was set up as a Michigan corporation around 1930. Defendant Firestone purchased most of its assets at that time, allowing the manager to retain a minority stock interest. Defendant Firestone has owned 100% of the stock in Muskegon Firestone since around 1960. At the time of plaintiff’s accident, all of the subsidiary’s directors were employees of defendant. In early 1977, the corporation, Muskegon Firestone, was liquidated and is now run as a retail division of defendant.
"Firestone carried the worker’s compensation coverage for all of the local branches including Muskegon Firestone. Plaintiff filed for compensation citing Firestone as his employer and commenced receiving benefits from Firestone’s insurance carrier, Liberty Mutual Insurance Company, which continue to be paid at this time.
"Plaintiff, subsequent to receiving benefits from Fire stone, commenced the instant third-party product liability suit against Firestone. Defendant Firestone moved for summary judgment on the basis that plaintiff was barred from bringing the action against Firestone by the exclusive remedy provision of the Michigan Worker’s Disability Compensation Act of 1969, MCL 418.131; MSA 17.237(131).
"The trial court found that plaintiff was not an employee of defendant Firestone but of the separate corporate entity Muskegon Firestone. Summary judgment was denied and leave to appeal to this Court was granted on June 18, 1979.” Wells v Firestone Tire & Rubber Co, 97 Mich App 790, 791-793; 296 NW2d 174 (1980).
We must decide whether plaintiff’s products liability action is barred by the exclusive remedy provision of the Worker’s Disability Compensation Act. That determination necessarily turns on whether an employment relationship existed between plaintiff and defendant. Stated more directly, the question is whether defendant was plaintiff’s employer on the date of injury. In answering this question, we initially must determine what test is to be employed. We find direction from this Court’s decision in Nichol v Billot, 406 Mich 284, 293-294; 279 NW2d 761 (1979):
"Prior to Tata v Muskovitz, 354 Mich 695; 94 NW2d 71 (1959), the only test for determining whether a person was an employee or an independent contractor centered on the question of control. The control theory is the traditional common-law test used to delineate the master-servant relationship. The theory, in its delineation of the servant concept, has for its purpose the definition and delimitation of the scope of the master’s liability under the doctrine of respondeat superior. Because most compensation acts contain no specific definition of the term 'employee’, it was generally taken for granted that the common-law definition of employee, or servant, used for purposes of vicarious tort liability was to be used for purposes of workmen’s compensation laws.
"In Tata v Muskovitz, supra, this Court adopted the dissenting opinion of Mr. Justice Talbot Smith in Powell v Employment Security Comm, 345 Mich 455; 75 NW2d 874 (1956), in which he set forth the economic reality test as the proper guide to relevant interpretation of the workmen’s compensation statute. See, also, Schulte v American Box Board Co, 358 Mich 21; 99 NW2d 367 (1959); Goodchild v Erickson, 375 Mich 289; 134 NW2d 191 (1965); Solakis v Roberts, 395 Mich 13; 233 NW2d 1 (1975); Askew v Macomber, 398 Mich 212; 247 NW2d 288 (1976).”
Following our departure from the common-law control test, this Court has consistently utilized the economic reality test when questions have arisen relative to the existence of an employment relationship. While this Court’s earlier applications of the economic reality test dealt with the distinction between an independent contractor and an employee or, as in Farrell v Dearborn Mfg Co, 416 Mich 267; 330 NW2d 397 (1982), with dual employers in a labor-broker situation, we believe it to be appropriate and consistent to utilize the economic reality test in determining in this case which of two separate corporations, parent or subsidiary, was plaintiffs actual employer for purposes of the Worker’s Disability Compensation Act.
The economic reality test was succinctly described in Farrell, p 276:
"The issue of whether employment exists for purposes of the workers’ compensation law has been frequently addressed by our courts. The standard to be used is the economic reality test, a broad approach which, in the oft-quoted language of Justice Talbot Smith, looks to the totality of the circumstances surrounding the performed work.
" 'Control is a factor, as is payment of wages, hiring and firing, and the responsibility for the maintenance of discipline, but the test of economic reality views these elements as a whole, assigning primacy to no single one.’ Schulte v American Box Board Co, 358 Mich 21, 33; 99 NW2d 367 (1959).
"See, also, Tata v Muskovitz, 354 Mich 695; 94 NW2d 71 (1959); Askew v Macomber, 398 Mich 212; 247 NW2d 288 (1976); McKissic v Bodine, 42 Mich App 203; 201 NW2d 333 (1972); Nichol v Billot, 406 Mich 284; 279 NW2d 761 (1979); Solakis v Roberts, 395 Mich 13; 233 NW2d 1 (1975); Allossery v Employers Temporary Service, Inc, 88 Mich App 496; 277 NW2d 340 (1979).
"The economic reality test looks to the employment situation in relation to the statutory scheme of workers’ compensation law with the goal of preserving and securing the rights and privileges of all parties. No one factor is controlling.”
In this case, the Court of Appeals utilized the economic reality test and reversed the trial court because
"[t]he evidence indicates that while Muskegon Firestone was a separate corporate entity at the time plaintiffs cause of action arose, its operation was the same as the other retail divisions. The local store branch managers belonged to a program whereby they participated in the store’s profits or losses; they ordered inventory from defendant on consignment and purchased some items outside the company for resale. The other retail store and Muskegon Firestone were both listed in the local telephone directory as divisions of Firestone. All dollar accounting was handled by the central accounting office of defendant. Local store man agers did not issue company checks; they deposited all money in bank accounts in defendant’s name. The local store managers received monthly profit and loss statements regarding their individual stores.
"Defendant calculated the expenses of each store in order to determine its annual operating profit or loss. Expenses charged to the stores included a percentage for worker’s compensation insurance rates and other expenses attributable to payroll, rent, maintenance, etc.
"The evidence further indicated that the employees of Muskegon Firestone were under the supervision of defendant and subject to the rules and regulations thereof. The common practice, however, was for the local managers to do the hiring and firing. Certain of defendant’s employees had the ability to hire and fire the local managers and could, if they chose, hire and fire other local employees. The local store manager acted within the framework of defendant’s regulations. Employees of retail stores did not all belong to the same union as the employees of defendant. In fact, some retail personnel were unionized while others were not. In some cases, retail stores in an entire metropolitan area were organized in the same union regardless of whether they were separate corporations.
"Defendant’s district supervisor, who testified that at the time of plaintiffs injury the employees of Muskegon Firestone were under his supervision and control, denied that retail store employees received different treatment depending on whether the store was a division or a separate corporation. In fact, all the retail employees were entitled to participate on the same basis in defendant’s hospitalization and retirement benefit programs and other fringe benefits.
"Muskegon Firestone filed a separate corporate income tax return and issued its own W-2 forms to plaintiff and its other employees. However, all of these forms were processed at defendant’s central tax department. Employees of Muskegon Firestone received paychecks from defendant through its central accounting office. Records of employment relating to plaintiff and other retail store employees were kept and administered by the personnel department of defendant Firestone.
"In balancing all of these factors for the purpose of applying the economic reality test, we find that defendant Firestone was plaintiff’s employer within the meaning of the Worker’s Disability Compensation Act of 1969. Therefore, the trial judge erred in refusing to grant defendant’s motion for summary judgment on the ground that plaintiff’s exclusive remedy is under the Worker’s Disability Compensation Act.” Wells, supra, pp 794-796.
Our balancing of those same factors persuades us that the Court of Appeals correctly applied the economic reality test to the facts of this case. However, further comment is warranted because the result, in effect, is a "reverse-piercing” of defendant’s corporate veil.
We recognize the general principle that in Michigan separate entities will be respected. See Klager v Robert Meyer Co, 415 Mich 402; 329 NW2d 721 (1982), Finley v Union Joint Stock Land Bank of Detroit, 281 Mich 214; 274 NW2d 768 (1937), and Gledhill v Fisher & Co, 272 Mich 353; 262 NW 371 (1935).
However, the fiction of a distinct corporate entity separate from the stockholders is a convenience introduced in the law to subserve the ends of justice. When this fiction is invoked to subvert justice, it is ignored by the courts. Paul v University Motor Sales Co, 283 Mich 587, 602; 278 NW 714 (1938). This of course means that, in general, even though Firestone is the parent company of Muskegon Firestone, its separate existence will be respected, unless doing so would subvert justice or cause a result that would be contrary to some other clearly overriding public policy. See, e.g., Cinderella Theatre Co, Inc v United Detroit Theatres Corp, 367 Mich 424; 116 NW2d 825 (1962).
Although traditionally the doctrine of "piercing the corporate veil” has been applied to protect a corporation’s creditors, or other outsiders, where the corporate entity has been used to avoid legal obligations, People ex rel Attorney General v Michigan Bell Telephone Co, 246 Mich 198; 224 NW 438 (1929), Michigan courts have recognized that it may be appropriate to invoke the doctrine for the benefit of a shareholder where the equities are compelling. See, e.g., Montgomery v Central National Bank & Trust Co of Battle Creek, 267 Mich 142; 255 NW 274 (1934).
Our disregard of the separate corporate entities of Firestone and its wholly owned subsidiary is premised upon our recognition of the important public policies underlying the Michigan Worker’s Disability Compensation Act and our belief that a contrary determination would be inequitable under the facts of this case. The statutory workers’ compensation scheme was enacted for the protection of both employees and employers who work and do business in this state. The system assures covered employees that they will be compensated in the event of employment-related injuries. In addition, employers are assured of the parameters of their liability for such injuries. By agreeing to assume responsibility for all employment-related injuries, employers protect themselves from the possibility of potentially excessive damage awards. In order to effectuate these policies, the statute has been liberally construed to provide broad coverage for injured workers. See, e.g., Farrell v Dearborn Mfg Co, supra.
If the statute is to be construed liberally when an employee seeks benefits, it should not be construed differently when the employer asserts it as a defense to a tort action brought by the employee who claimed and accepted benefits arising from that employment relationship. There is absolutely no evidence that defendant maintained Muskegon Firestone for the purpose of insulating itself from its workers’ compensation liabilities. Defendant supplied workers’ compensation benefits through its insurance company and accepted responsibility for the work-related injuries of its Muskegon employees. Indeed, under the facts and circumstances of this case, we would not have permitted Firestone to shield itself behind its wholly owned subsidiary in order to avoid payment of workers’ compensation benefits to plaintiff. Cf. Williams v Lang (After Remand), 415 Mich 179; 327 NW2d 240 (1982).
It is also significant that plaintiff did not rely upon the corporate distinction between Firestone and Muskegon Firestone. In fact, plaintiff disregarded this distinction when he asserted that Firestone was his employer for the purpose of obtaining workers’ compensation payments. Plaintiff should not now be permitted to deny the relationship which he asserted and upon which Firestone relied in assuming responsibility for payment of workers’ compensation benefits.
Plaintiff also argues that his cause of action is not barred by the exclusive remedy provision of the Worker’s Disability Compensation Act because his injuries did not arise out of the employment relationship. He maintains that more than one type of relationship existed between himself and defendant at the time he was injured. We reject this attempt to apply the so-called "dual-capacity doctrine.” _
The dual-capacity doctrine recognizes that an employer can, under certain circumstances, occupy a status other than that of an employer with respect to his employee. See, e.g., Mathis v Interstate Motor Freight System, 408 Mich 164, 184; 289 NW2d 708 (1980). However, the doctrine is applicable only in those situations where the employer has a second identity which is completely distinct and removed from his status as employer.
This fundamental requirement for the application of the dual-capacity doctrine is set forth in 2A Larson, Workmen’s Compensation Law, § 72.81, p 14-229:
"An employer may become a third person, vulnerable to tort suit by an employee, if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.”
The great majority of American jurisdictions have held that an employer who manufactured the injury-causing device cannot be held liable to his employee under a products liability theory. Id., § 72.83, p 14-239. Furthermore, the fact that the injury-causing product was also sold to the public is unimportant:
"What matters is that, as to this employee, the product was manufactured as an adjunct of the business, and furnished to him solely as an employee, not as a member of the consuming public. What the employer does with the rest of his output cannot change this central fact.” Id., § 72.83, p 14-246 (emphasis in original).
We conclude that plaintiff was employed by defendant and was injured while acting in the course and within the scope of his employment. We affirm the judgment of the Court of Appeals.
Williams, C.J., and Ryan and Brickley, JJ., concurred with Cavanagh, J.
We note that the motion should have been denominated as one for accelerated judgment, pursuant to GCR 1963, 116.1(2), and it will be treated as one because no prejudice to plaintiff is alleged or apparent. See, e.g., Dagenhardt v Special Machine & Engineering, Inc, 418 Mich 520, 525, fn 3; 345 NW2d 164 (1984); Bednarski v General Motors Corp, 88 Mich App 482, 484, fn 1; 276 NW2d 624 (1979), and the authorities cited therein. We also note that the parties properly stipulated that any factual issues raised by defendant’s motion could be resolved by the trial judge. See GCR 1963, 116.3.
MCL 418.131; MSA 17.237(131).
MCL 418.101 et seq.; MSA 17.237(101) et seq.
The Michigan Court of Appeals has rejected several dual capacity claims and found them insufficient to avoid the exclusive remedy provision in situations factually analogous to the instant case. See Neal v Roura Iron Works, Inc, 66 Mich App 273; 238 NW2d 837 (1975), lv den 396 Mich 841 (1976); Peoples v Chrysler Corp, 98 Mich App 277; 296 NW2d 237 (1980); Bourassa v ATO Corp, 113 Mich App 517; 317 NW2d 669 (1982), lv den 414 Mich 966 (1982); Handley v Wyandotte Chemicals Corp, 118 Mich App 423; 325 NW2d 447 (1982). | [
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Fellows, C. J.
Plaintiff is the father of defendant. He has two other sons and a daughter. He owned land in Ottawa county and had property in Chicago. He is a tailor by trade. About 1908 he deeded to defendant 80 acres of his Ottawa county land, but retained other land including that involved in this suit. He gave defendant the personal property on the farm and he and his wife went to Chicago to live. In April, 1918, his wife died and shortly after that he came to live with defendant on the Ottawa county farm. In the spring of 1919 the. plaintiff decided to return to Chicago to look after his property there. It is to be inferred that his stay in Chicago might be prolonged. On March 7th, he signed the deed in question which conveyed to defendant another 80 acres of the Ottawa county land. This deed was left in escrow with a Mr. Sherwood of the Grand Haven State Bank. The pivotal questions in the case revolve around the terms upon which the deed was deposited and these are purely questions of fact. Mr. Sherwood, as we understand the record, was deceased at the time the case was heard. The plaintiff’s testimony was somewhat rambling and his conduct in court erratic although mental incompetency is not charged in the bill. The trial judge found upon the facts:
“It is evident from the testimony of both parties •that the deed was to be effective only in case that the .plaintiff did not return from Chicago and that if he did return that the deed would be subject to his direction and control. This understanding between the parties was not conveyed to the attorney who drafted the deed, but it is clear from the testimony of both parties that plaintiff reserved the right to call for the deed when he returned from the trip from Chicago, that it was to be effective to pass title only In case of his death before he returned from his'trip to Chicago.”
Portions of defendant’s testimony sustain this finding although other portions tend to establish an absolute delivery in escrow without the power to recall and that the deed was executed pursuant to a long existing intent and agreement to give defendant this land. While we hear chancery cases de novo we are not persuaded that we should reach a different result upon the facts than did the trial judge. He'heard and saw the witnesses and had superior opportunity to judge their credibility, a factor of prime importance in the instant case. We agree with his conclusions and affirm the decree. Plaintiff will recover costs of this court.
Wiest, McDonald, Clark, Bird, Sharpe, • Moore, and Steere, JJ., concurred. | [
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] |
McDonald, J.
Questions of fact alone are involved in this case. As we reach a different conclusion than did the trial judge, we shall state the facts we are persuaded this record establishes. Peter Morton, Sr., was the owner of an 80-acre farm in Saline township, Washtenaw county. He had three children, the plaintiffs and defendant Maggie McHeney. Hannah was the oldest of the family. Until her marriage at the age of 17 she worked on the farm, on occasions doing a man’s work. Peter was somewhat dissolute and untrustworthy. Maggie, the youngest of the family, when married, went to live in Detroit. Mrs. Morton died July 9, 1911. The following spring Mr. Morton rented the farm and went to live with Maggie in Detroit. He lived with her and she cared for him until his death May 4, 1919. Mr. Morton’s farm was not far from Tecumseh and he frequently went there. Such law business as he had was done, by Mr. Wood, an attorney living there and who had been following his profession since 1884. Before that Mr. Wood’s father had done his business. He called on Mr. Wood occasionally for a visit when he had no business to transact. After going to live with his daughter Maggie, Mr. Morton, so long as his health permitted, made occasional visits to the farm, and when he went there he frequently went to the nearby towns, Saline, Clinton, and Tecumseh. In 1914, Mr. Morton had Mr. Wood prepare a will for him. In it he provided that Maggie should be reasonably and liberally paid for her services, and in addition gave her $200 or $300, and divided the balance of his property between his three children, the share of Peter being placed in trust. In 1916 he made another will making the same provision as to compensation to Maggie, slightly increased her specific bequest, and made the same division of the balance. In January of 1918, he made another will which contained the provision for compensating Maggie, increased her specific bequest sev eral hundred dollars, and divided the balance between his children, but did not place Peter’s share in trust. All these wills were drawn by Mr. Wood in his office at Tecumseh. In the fall of 1918, Mr. Morton sent for Mr. Wood to come to Detroit. On November 18th, Mr. Wood went there; he spent practically half a day with Mr. Morton. They visited about old times and Mr. Morton went over fully with Mr. Wood the disposition of his property and was fully advised by Mr. Wood. Mr. Morton was then in a crippled condition. He then well knew his condition and was apprehensive that he would continue a great care until his death. He looked to his daughter Maggie and to no one else for such care. He wanted to compensate her for the care she had rendered and would render in the future. All of this he communicated to Mr. Wood. By his direction Mr. Wood prepared the deed here assailed. It conveyed the farm to Maggie, reserving a life use. Mr. Wood also prepared a paper which was executed by Maggie acknowledging full payment for past services and agreeing to care for her father during the balance of his life, also agreeing to pay his burial expenses if he left insufficient funds, and agreeing to pay her brother and sister each $300 within a year after his death. This was made a lien on the premises. By Mr. Morton’s direction the deed was recorded, and likewise by his direction the other paper was kept by Mr. Wood. Both instruments were witnessed by Mr. Wood and Mr. Morton’s physician.
This deed is assailed on the usual grounds of mental incapacity and undue influence. There is some testimony coming from members of plaintiffs’ families which would have some tendency to sustain plaintiffs’ claim although it is of the most meagre sort. • The overwhelming weight of the disinterested testimony both from plaintiffs’ witnesses and those called by defendants establish his mental competency to execute the instrument here involved. Mr. Morton was not an educated man; he could neither read nor write. He was about 73 years old when the deed was executed. His physical condition required constant care and attention but it did not affect his mentality. The testimony of the doctor, of Mr. Wood, of neighbors in Detroit, of old neighbors who visited him and of others who knew and saw him is convincing to us that the instrument in question was not the product of an unsound mind. The old as well as the young may dispose of their property as they see fit, the illiterate as well as the educated. This property was the property of Mr. Morton and it was for him to give or to withhold as he saw fit. Plaintiffs have failed to establish the mental incompetency of the deceased.
We are also satisfied that the deed is not the product of undue influence. If we should accept the contention of plaintiffs’ counsel that this case falls within the class of cases where the trust relation or quasi-trust relation is held to exist, and adopt the rule contended for by them, that the burden is on the defendants to show that the transaction was in all regards fair, a rule of doubtful application to the facts of this case, it would not benefit plaintiffs. Here the grantor had independent advice from his own attorney. He and his attorney went over the matter fully when no one else was present and after it had been decided just what should be done Maggie was called in and advised of the arrangement. She then said to her father:
“Father, anything you want to do with your property is all right with me, you can have a home here as long as you live whether I get a dollar for it or not.”
She then left the room and Mr. Wood proceeded to prepare the papers. We are satisfied that there was no influence, due or undue, exercised over deceased to procure this deed, that it was freely made to compensate the only one of the children who seemed to be willing to furnish a home for deceased in his declining days.
There is some testimony in the record as to the amount of money Mr. Morton had at different times during the last six or eight years of his life. We think there are some duplications in plaintiffs’ figures and that their claim of the amount of money he had is too high. He paid the taxes on the farm, bought grass seed for it, had doctor’s bills and other personal expenses to pay, and we are not convinced that defendant Maggie has any of her father’s money or that she has been paid for her care otherwise than by the deed.
The decree of the circuit court setting aside the deed will be reversed and one here entered dismissing the bill, with costs of both courts to defendant Maggie McHeney.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
undue influence in conveyance or transfer of property in consideration of support of the grantor or a third person, see note in 52 L. R. A. (N. S.) 476. | [
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] |
Fellows, C. J.
Defendant, an insurance company, authorized to do business in this State, on August 31, 1918, entered into the contract of insurance here sued upon with the plaintiffs, laston Aromo, Tony 'Kosocker and John David. The plaintiffs were partners and the property covered by the insurance was partnership property. Plaintiffs had not complied with either Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.), or Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seq.). The contract of insurance was with them in their individual names and the principal defense is that they are precluded from recovery here because of their failure to comply with the acts cited. This contention is completely answered by the case of Rossello v. Trella, 206 Mich. 20. In that case the plaintiffs were partners, but they entered into a contract in their individual names and as individuals. It was held that such a contract was not void by reason of the statute. Here the contract is with the plaintiffs in their individual names and as individuals. It can not be questioned but that each partner had an insurable interest in the partnership property. The contract of insurance under the authority just cited was not void but was valid. The court very properly overruled defendant’s motion for a directed verdict.
After the fire two disinterested, competent men. made a detailed appraisal, fixing the damages at the-sum of $1,187.32. Both were called as witnesses and. testified to this amount as the amount of the loss.. No testimony contradicting theirs was given. In fact, no testimony was offered by defendant. The insurance company was given notice that the policy had. been assigned to Mr. Tillson, one of plaintiffs’ attorneys. Upon the trial he testified that this was at mistake, that it was another policy that had been assigned to him, that he had no interest in this policy, and that it belonged to plaintiffs. There was no proof of any assignment of the policy.- The policy was introduced in evidence and there was no assignment upon it. The record does not show- any intimation from defendant’s counsel that he desired the court to submit the two questions just noted to the jury. The testimony introduced by the plaintiffs being all there was in the case, and there being no intimation by defendant’s counsel that he desired to go to the jury upon any question in the case, there was no error in the trial judge instructing the jury to render a verdict for the undisputed amount of damages in favor of the plaintiffs who, under the proofs, were the “real party in interest.” See section 12353, 3 Comp. Laws 1915.
The judgment will be affirmed
Wiest, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Moore, J.
This is an action brought by George P. Frebes, under the Federal employers’ liability act (35 U. S. Stat. chap. 149, p. 65), to recover for personal injuries sustained by him on October 23, 1917; while in the employ of the Michigan Central Railroad Company as a car rider in its junction yards at Detroit, Michigan. The defendant has the junction switching yards, where incoming freight trains are broken up and outgoing freight trains are made up. On each car as it is so switched rides a switchman who is called a car rider. His duty is to stop the car at the proper place, and open the coupler so that the next car will couple to it without difficulty. The plaintiff was working as a car rider at the time he was injured. In the yard is a switch engine commonly referred to as a trimmer which moves the cars. It is equipped with foot boards extending across the entire width of the engine both in front and rear a few inches above the ground. These foot boards are for the switch-men and car riders to ride upon. In the course of his duties Mr. Frebes stepped upon the front running hoard and stood upon the right or engineer’s side of the board. He turned around to take the number of the engine which was on a plate on the front of the boiler. At that moment the engine! was derailed and Mr. Frebes received serious injuries. The engine was derailed by a knuckle which was at a frog on a switch track leading off the main track. A knuckle is a part of a coupling on a car. It is made of cast iron or steel. When all the testimony had been given the trial judge was of the opinion that no actionable negligence had been shown and directed a verdict in favor of the defendant. The case is brought here by writ of error.
Two propositions are argued in appellant’s brief:
(1) Was defendant engaged in interstate commerce at the time plaintiff received his injuries?
(2) Was there any evidence of negligence on the part of the defendant?
We recognize the well-established principle that the plaintiff is entitled to have his evidence given the most favorable construction it will bear and to have the benefit of every fair inference that may be drawn from the evidence guided by sound processes of reasoning and applicable principles of law. See Benjamin v. McGraw, 208 Mich. 75; In re Bailey’s Estate, 213 Mich. 344; Douglas v. Insurance Co., 215 Mich. 529, 533; Wood v. Vroman, 215 Mich. 449.
In our view of the case the pivotal question is, Did the plaintiff show actionable negligence on the part of the defendant? It is insisted that, if the engineer had been looking, he would have discovered the obstruction in time to have stopped his engine, and that, taking all the facts and circumstances surrounding the occurrence, it presented a case for a jury. We quote from the brief:
“The happening of the accident taken in connection with the surrounding circumstances raises a presumption of defendant’s negligence which constitutes a prima facie case for the jury. Burghardt v. Railway, 206 Mich. 545; O’Donnell v. Lange, 162 Mich. 654; Sewell v. Railway, 158 Mich. 407; Chapman v. Express Co., 192 Mich. 654.”
When the accident happened it was a rainy day and the scope of vision was limited. It may be well to now quote some of the testimony of the plaintiff:
“While we were going down to get the rest of the riders and after we ran in on this short lead, the engine got derailed. I do not think all the wheels were off the rails, but most of them were. The engine was not off the ties. The moment it struck, Mr. Montgomery hollered at me. I was taking down the number of the engine, had just glanced up there. He hollered. The engine struck something and threw it right end up and threw me off right under the engine. The engine struck just about the same time he hollered. I did not have time after hearing his voice to jump off his engine, for it all happened in a fraction, in a very short time at least.
“Montgomery jumped just as he hollered, but it did not in any way cause my injury, for his jump did not and could not throw me off. He jumped off the left side, and when the engine was derailed that threw me off, the engine jumped to the south of the rails, and the wheels were right down on the ties. Whatever it was threw the front end of the engine up and that is what threw me off. I was thrown off right between the rails of the track on which this engine was traveling, right in front of the engine. I did not see any obstruction to the engine passing along in its usual manner. I did not see anything. I do not, of my own knowledge, know what derailed the engine. ' Standing on the foot board as I was, I was practically over the rail. The engine did jump the track, and its jumping threw me off. * * *
“A. No, that is the first engine I have seen derailed since I have been working for the company.”
We quote from his recross-examination:
“I never saw a knuckle out there on the tracks, and in the two months I worked there the yards were always kept clean and everything picked up. Inspectors and track men went over the yards continually picking up everything all the time, and kept it all clean. They went back and forth all over the tracks and there were a number of men in that yard doing that kind of work, and I knew they were there for that purpose.
“Q. And you, from your experience there, saw that track, the lead track and the other tracks you worked •on were kept clean?
“A. Yes.
“Q. All the time you were there?
“A. Yes.
“Q. No obstructions?
“A. No.
“Q. No knuckle?
“A. No.
“Q. Coal that fell off a car being moved would be immediately picked up?
“A. Yes.
“Q. And so, for a knuckle to be on either one of these tracks from the experience you had there, and seeing the tracks were kept so clean would be a most unusual occurrence?
“A. That is the first I have seen.
“The Court: Well, did you see that one?
“A. Well, no, I didn’t see it. * * *
“Q. Now, looking at the number was a matter of only a moment, wasn’t it?
“A. Yes, sir.
“Q. So you had your eyes away from the front direction in which you were going but a very short time?
“A. Yes.
“Q. A matter of two or three seconds? .
“A. Just a short time; yes, sir.
“Q. And prior to the looking at the number, you said you had your eyes in the direction in which you were going arid looking forward on the track?
“A. Yes.
“Q. And you saw nothing?
“A. No.
“Q. And you momentarily glanced around at this number, which took two or three seconds, and the accident happened?
“A. Yes, sir.”
Witness Montgomery, who was riding on the front foot board with plaintiff, testified in substance that he
“saw something on the track when he was about 50 feet from it, the! engine at the time moving 6, 7 or 8 miles an hour, but did not know what it was and waited until he got within two feet of it when he saw it was a knuckle and hollered to Frebes to jump. The knuckle was lying alongside the track in the frog. When witness first saw the object he could not tell what it was because of the peculiar position it was lying in on its back flat in the heel of the frog and could not discern it until he got close and as soon as he got close enough to see what it was he jumped. He could not tell what it was until the knuckle was about 2 feet from the foot board. He jumped just as soon as he saw what it was. Being in the frog it was lying right between the two railroad rails where they branch out from each other. The day was drizzly, rainy, cold, damp, cloudy and overcast. He had been working in the yard prior thereto and had not seen this knuckle in his traveling down the yard. He was back and forth over the same tracks around 20 times in the forenoon and saw no knuckles there. He saw another yard engine making up trains, working back and forth over the same lead track with and without cars, making moves all the forenoon.”
We have gone over this somewhat lengthy record with great care. We do not find in it any evidence of negligence on the part of the defendant. We agree with the trial judge when he said:
“The engine was derailed and I assume that it was derailed because this knuckle was in this frog; it has not been shown that a single person in the employ of the defendant railroad company knew that that knuckle was there until a few seconds before the injury. Nothing has been shown by which the jury could infer, in my judgment, that by reasonable inspection the knuckle could have been observed in time to have averted the accident to the plaintiff. There is nothing in the case, as I have already said that indicates that the defendant was not performing its full duty with reference to inspection, and we all know the fundamental rules with respect to the duty of an employer to inspect. It is fundamental that there must be either actual or constructive notice of the danger and a reasonable opportunity given to the em ployer to remove it before he can be charged with actionable negligence.
“I do not believe, gentlemen, that this case can go to the jury on the subject of the alleged negligence of the defendant because in some way or other this knuckle got into this frog on this particular occasion.
“The only other question is as to whether the engineer by the exercise of reasonable care should have seen this knuckle in time to have averted the injury.
“The plaintiff’s own testimony convinces me that that could not have been done. It is not a question of fact to be submitted to the jury as to whether he could or could not have seen it; it would be pure conjecture. The plaintiff’s own witness testified that he was watching it in the mist and rain of that morning ; he could not observe until he reached within three or four feet of it and then he discovered what it was, gave the warning and leaped to safety himself.
“Now it would be presumptuous in the face of the plaintiff’s own testimony to submit a question of inference to this jury whereby they might decide contrary-wise and that the engineer could have seen over his engine and 50 feet ahead of his engine, and still determine that that was a knuckle and stop his engine in time to have avoided the injury. I do not believe that is a question for the jury, but rather under the undisputed facts it drifts into the realm of mere conjecture and does not come within the field of legitimate inference from the testimony.”
See Toomey v. Steel Works, 89 Mich. 249; Culver v. Railroad, Co., 138 Mich. 443; Micari v. Monroe Stone Co., 154 Mich. 362; Beach v. Railroad Co., 180 Mich. 524; Meyer v. Grand Rapids Chair Co., 180 Mich. 604.
Having reached this conclusion, it is unnecessary to discuss the other question.
Judgment is affirmed, with costs to the appellee.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.
constitutionality, application and effect of Federal employers’ liability act, see notes in 47 L. R. A. (N. S.) 38; 48 L. R. A. (N. S.) 987; L. R. A. 1915C, 47. | [
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Bird, J.
Plaintiff filed this bill to partition certain real estate in Bay City in which she claimed an undivided one-half interest. Flora B. Snyder was made a defendant as well as the tenants occupying the real estate. Flora B. Snyder appeared and denied that plaintiff had any interest in the real estate. A hearing on the merits followed and convinced the chancellor that defendants’ position was the correct one and plaintiff’s bill was dismissed.
The facts out of which the question in controversy has developed are, in substance, these: In 1905, Melvin A. Root, an elderly" man, was the owner of certain residence and business property in Bay City. He had recently lost his wife, and having no children he was very lonely. He conceived the idea of inviting Jared M. Snyder, his brother-in-law, then employed in Washington, D. C., to come with his wife and daughter and take charge of his business interests, occupy his dwelling, and make a home for him. He estimated that the income from the business property was large enough to furnish support for all of them and furnish him with opportunity and the means to spend some of his time in travel. He further conceived the idea of placing the title of said property in the Snyders and himself in joint tenancy. After some reflection the Snyders accepted his proposition and moved to Bay City and took charge of Mr. Root’s business matters and Mrs. Snyder took charge of the household duties. Mr. Root, to carry out his plans, conveyed the title to said residence and business property to one Frantz, and in turn he conveyed it to Melvin A. Root, Jared M. Snyder, Susan W. Snyder and Flora B. Snyder, “as joint tenants, and to their heirs and assigns, and to the survivors or survivor of them, and to the heirs and assigns of the survivors or survivor of them, forever.” (For a full text of the deeds see 161 Mich. 200.) Matters went along smoothly for a time but before the end of two years Mr. Root grew tired of his new relations and filed a bill to set aside this conveyance. His claim was that the Snyders had failed to carry out their agreement with him and that there was no consideration paid for the conveyance, and asking that the conveyance be set aside. This litigation resulted in sustaining the conveyance of the real estate and giving Mr. Root the whole use of the residence property and one-third of the income from the business property. (161 Mich. 200.) Subse quently, and in 1908, Mr. Root went to live with, a second cousin, Julia E. Jones, the plaintiff herein. He remained with her until his death. In March, 1919, Mr. Root conveyed to said Julia E. Jones an undivided one-half interest in said residence and business property. At the date of this suit Mr. and Mrs. Snyder were deceased and defendant Flora B. Snyder was the only survivor of the four grantees in the deed of joint tenancy. Flora B. Snyder’s claim is that Mr. Root’s deed to Julia E. Jones did not convey any interest in the property, but that she herself took the entire interest as survivor. The question in the suit is; Did Julia E. Jones get any interest in the real estate by her deed from Mr. Root?
Both parties concede that the deed made the parties joint tenants of the real estate. Plaintiff asserts that Mr. Root, as a joint tenant, had a right to convey his interest to plaintiff. Defendants contend that by reason of the stipulation in the deed that the property should go to the survivor or survivors, he could not alienate his joint interest.
Much time has been devoted by plaintiff to the question whether one joint tenant can alienate his joint interest. If the deed created a simple joint tenancy there is no question but Mr. Root could sever his interest. That question need not be further considered. The real question is, Does the addition of the words “survivor or survivors” change the rule that one joint tenant may sever the tenancy? Defendants rely upon the cases of Schulz v. Brohl, 116 Mich. 603, and Finch v. Haynes, 144 Mich. 352 (115 Am. St. Rep. 447), to sustain their contention that the tenancy cannot be severed.
The chancellor was of the opinion that these cases controlled the present one. In principle there is no distinction. Technically there is this distinction: In the Michigan cases cited the “survivorship” is at tached to a tenancy in common, whereas, in the present case, the “survivorship” is attached to a joint tenancy. We are unable to see why the rule laid down in the Michigan cases should not be applied in. both classes of tenancy. The words “survivor or survivors” attached to the granting clause indicate an intention upon the part of the grantor to create something more than a mere joint tenancy. The word “survivor” attached to the estates in common in the Michigan cases cited carried them to the survivor, and we see no valid reason why it should not operate the same with a joint tenancy. If we construe the deed as a pure joint tenancy we give no effect whatever to the words “survivor or survivors.” It is quite evident that those words were used by Mr. Root for some purpose, and we think that purpose must have been to secure the property to the longest liver or to the survivor. Under this view we must construe the deed as creating a joint tenancy for life in the grantees with a contingent remainder in fee simple to the survivor. This construction was given to the provisions of a will where the testator gave the remainder of an estate to seven devisees (naming them) in joint tenancy. Quarm v. Quarm (1892), 1 Q. B. Div. 184 (61 L. J., Q. B. 154, 66 L. T. Rep. [N. S.] 418, 40 Weekly Reports, 302). To one who is attempting to find the right solution the case cited is a very interesting and instructive one by reason of its similarity and reasoning. A portion of the opinion of Lord Chief Justice Coleridge is given below:
“In this case we have to place a construction upon a clause in a will dated in 1840, shortly after the Wills act came into operation, and evidently drawn by a lawyer. Section 28 of the Wills act enacts ‘that when any real estate shall be devised to any person without any words of limitation such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dis pose of by will in such real estate, unless a contrary intention shall appear by the will.’ Therefore it is said unless a ‘contrary intention appears by the will’ the effect must be to make the seven devisees joint tenants in fee; and in that case the joint tenancy in fee has been severed and put an end to owing to the conveyance of his share by one of the joint tenants. But it is urged on behalf of the plaintiff that when the whole clause is looked at, a ‘contrary intention’ does appear — an intention, that is, to make these persons, not joint tenants in fee, but tenants for life, with a contingent remainder in fee simple to the ultimate survivor; and that this is shewn by the use of the words ‘and to the survivor or longest liver of them, his, or her heirs and assigns forever’; and it was admitted on behalf of the defendants that, if this is not their true construction, these words must be regarded as not only inconsistent with the rest of the clause, but as useless. It is familiar law that effect should, if possible, be given to every word which the testator uses, and the interpretation suggested by the plaintiff does this. It gives effect to all the terms of the settlement, makes none of them nugatory, and places a plain and intelligible meaning on the words of the will. There is, therefore, good prima, facie reason for adopting it.”
We are of the opinion that the conclusion reached by the chancellor is right and should be sustained.
The decree is affirmed.
Fellows, C. J., and Wiest, Clark, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision.
validity and effect of a deed by one co-tenant purporting to convey a parcel in severalty to a third person, see note in 47 L. R. A. (N. S.) 573. | [
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Wiest, J.
Defendant was convicted of the crime of involuntary manslaughter, and brings the case here by writ of error. It is claimed by the prosecution that, on the 25th day of February, 1921, several workmen were repairing a street railway track on Fourteenth avenue in the city of Detroit, working near the center of the street, a little over 100 feet north of a viaduct, when the defendant, driving his automobile north on the street, in broad daylight, at a speed of upwards of 30 miles an hour, ran into the workmen and knocked them down like “nine pins,” killed one and, without lessening his pace, drove on. The information filed against defendant contained three counts; the first charged him with criminal recklessness in driving his automobile at the dangerous rate of 35 miles per hour upon Fourteenth avenue in the city of Detroit, etc., and as a consequence he killed one Kosta Kiroff; the second charged him with driving his automobile while intoxicated, and the third with approaching and traversing a certain bridge and steep descent without having his automobile under, control, and without regard to the traffic and safety of persons on the street. We have stated only the substance of the charges. The issues were submitted to the jury on all three counts, and defendant was; found guilty under the third count. The result, therefore, of the verdict was to acquit defendant of the charges in the first and second counts.
A motion for a new trial was made in which defendant alleged the verdict was against the weight of the evidence,
“because there was and is no bridge or steep descent on Fourteenth avenue near Kirby avenue, where the injuries to Kosta Kiroff were sustained, which the defendant could have approached or traversed within the meaning, of the statute, as pleaded in the third count of the information and of which the defendant was found guilty.”
This motion was denied and an exception duly entered.
Counsel for defendant contend there was no evidence from which the jury could find the defendant was approaching and traversing a bridge or steep descent, and the only testimony given upon the trial shows there was no bridge and defendant was driving his automobile up a slight grade. There was no testimony showing a bridge and the testimony relating to the grade of the street was extremely meager.
The statute, section 4817, 1 Comp. Laws 1915, so far as it relates to the third count, provides:
“Upon approaching an intersecting highway, a bridge, dam, sharp curve or steep descent, and also in Traversing such intersecting highway, bridge, dam, curve or descent, a person operating a motor vehicle shall have it under control and operate it at such speed as is reasonable and proper, having regard to the traffic then on such highway and the safety of the public.”
The statute means just what it says about approaching or traversing a steep descent, and the pleader, judging from the third count, clearly understood its meaning, for he pleaded the exact language of the statute.
There was a fatal variance between the third count and the proofs. If there was no steep descent in the street then defendant has been convicted where he should have been acquitted, and if he was guilty of criminal recklessness, as charged in the first count, then he has been acquitted where he should have been found guilty. The acquittal under the first and second counts sheared the third count of every essential element of the crimes charged in the first and second counts, and prevented a verdict of guilty for criminal recklessness in driving, unless he did so while approaching or traversing a steep descent.
Counsel for the people evidently overlook the fact that defendant was acquitted by the verdict of the jury of the charge made in the first count, for they say in their brief:
“It is our contention that whether or not there was any bridge or steep descent this defendant is charged to have operated an automobile on Fourteenth avenue in the city of Detroit at an unreasonable and improper rate of speed and without regard to the traffic then and there on said highway and street and without regard to the safety of the public and persons then and there on said highway and street, contrary to the provisions of section 4817 of the Compiled Laws of the State of Michigan for the year 1915. And if the defendant so operated a motor car in violation of the law and without regard to the rights of others he would be guilty under the third count of this information even though there was ho bridge or steep descent. Mere operation of an automobile without regard to traffic and the rights of others on the highway is forbidden by the statute referred to in the information, and the language used in the third count of the information is the language of the statute, so that it is our contention that that element is not a necessary element in the proof of this case.”
All here said relates directly to the charge in the first count and of this defendant stands acquitted.
Counsel also say:
“But we need not stop there because there is evidence to justify the charge (third count). In finding that this element of the charge was proven in the testimony of Joe Sarri, he said, ‘We were working on a kind of a hill/ and John F. Lewandowsky testified ‘You understand I was when the accident occurred driving down the grade. Just started down the grade/ And this was directly after the respondent had passed the witness going as the witness says 25 or 30 miles an hour, a pace, which according to the testimony of the witness Thompson was increased rather than diminished as the defendant drove down through and under the viaduct. Moreover the jury visited the scene of this accident and viewed the entire surroundings and saw just what the conditions were. And is this court going to say there was no evidence before this jury to establish a specific element which counsel for defendant says is absent from the proof of this offense?”
We will point out the fallacy of this argument. It is true Joe Sarri, one of the workmen, testified, “we were working on a kind of á hill,” and that is all he did say upon the matter here involved. Perhaps it is unnecessary to say that this testimony does not show whether the “kind of a hill” was lower or higher than the street at the viaduct, and such testimony, without further explanation, did not warrant an inference that defendant was approaching or traversing a steep descent. The testimony of Mr. Lewandowsky, quoted by counsel, shows on its face that the grade he was driving down was on the other side of the viaduct.
Stephen Walsh, a witness called by the people, testified:
“There is a considerable grade underneath the viaduct before you get to Kirby avenue, not directly under the viaduct, but I think starts from the viaduct and comes up to Kirby. I don’t know how far it' is from Kirby avenue to the viaduct, it may be 200 feet or it may be more.”
The place where the workmen were struck was between the viaduct and Kirby avenue, a little over 100 feet north of the viaduct. This testimony of Mr. Walsh completely negatived the charge that defendant was approaching or traversing a steep descent, and was the only testimony in the case directly bearing upon the subject. But it is claimed, as we understand the argument of counsel, the jury had a view of the locus'in quo and had a right to consider such view in reaching a verdict. No view by a jury can authorize a conviction contrary to evidence offered by the prosecution at the trial. A view is permitted to enable the jury to better understand the evidence but never to supply evidence, and especially not to support a verdict of guilty contrary to the only evidence offered by the prosecution at the trial. Close v. Railway Co., 73 Mich. 647, 652.
In Chute v. State, 19 Minn. 271, 281, the court stated:
“We think the court below misconceived the proper purpose of a view by a jury. The view is not allowed for the purpose of furnishing evidence upon which a verdict is to be found, but for the purpose of enabling the jury better to understand and apply the evidence which is given in court.
“If this were not so, then in every case of a view it would be impossible to determine whether the verdict was justified by the evidence or not, since whatever the jurors might see upon the view could not be presented in a case reporting the testimony. * * * Besides this, the parties have, for the most obvious reasons, a right to know just what evidence is submitted; but this cannot be if every juror is to be permitted to look up facts on his own account.”
See, also, Schultz v. Bower, 57 Minn. 493 (59 N. W. 631, 47 Am. St. Rep. 630).
Upon this point we do not consider the affidavit of the grade separation engineer of the city of Detroit, filed with the motion for new trial, and showing a slight rise in grade from the viaduct to the place of the accident. Defendant’s motion for a new trial should have been granted.
Upon this record we must reverse the case; the submission of the charge in the third count to the jury and defendant’s conviction thereunder presents error so clear and so prejudicial to the rights of defendant that the conviction cannot be saved under section 14565, 3 Comp. Laws 1915.
Many errors are assigned to the admission and rejection of testimony and refusal of requests to charge. They have been examined and call for no comment under the above holding beyond stating that none present reversible error.
For the reason pointed out the conviction is set aside and a new trial granted.
Fellows, C. J., and Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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] |
Moore, J.
In December, 1917, the plaintiff was a resident of Cleveland. He received a letter reading as follows:
“Hayes Manufacturing Company
Manufacturers of Automobile Sheet Metal Parts and Bodies
General Offices, Detroit, Mich.
Phone, Walnut 400.
“Detroit, Mich., December 3, 1917.
“Mr. O. E. Loew,
“1250 W. 76th Street,
“Cleveland, Ohio.
“Dear Mr. Loew: (All statements or agreements contained in this letter are contingent on strikes, accidents, fires or any other causes beyond our control.)
“As per our conversation yesterday we will agree to employ you at the rate of six thousand dollars ($6,000.00) the first year, sixty-six hundred dollars ($6,600.00) the second year and seventy-two hundred dollars ($7,200.00) the third year — same payable monthly in case you decide to come with us.
“Your work will consist generally of tool designing, special machinery, engineering and other things pertaining to your line of work, and no doubt can be of great assistance to us in our sales department in obtaining new business.
“In other words I feel that you should be a ‘free lance’ to be at the service of the writer and it might be necessary to occasionally visit the Hayes-Ionia factories at Grand Rapids and Ionia, Michigan, on some consultation work, etc.
“I trust you will be in position to accept our offer and awaiting your reply, remain
“Yours very truly,
“Hayes Manufacturing Company,
“H. J. Hayes (Signed)
“Ass’t. to President.”
The plaintiff accepted the offer contained in the letter in writing and entered upon his employment January 3, 1918, and continued to work until June 13, 1918, when he was discharged. He sued to recover damages. The case was tried before a jury. He had a verdict and judgment in the sum of $8,200. The case is brought here by writ of error.
We quote from the brief of counsel:
“The questions presented by the record and assignments of error and which are raised by the defendant as reasons why the judgment should be reversed, are as follows:
“(1) The contract is not a contract for three years but a contract for an indefinite period only.
“(2) The court should not have construed the contract with the aid of surrounding facts and circumstances.
“(3) The defendant was justified in terminating plaintiff’s employment.
“(4) Mr. Hayes had no authority to make a three year contract of employment on behalf of defendant.”
Counsel state their claim under this head very tersely as follows:
“The contract states that the plaintiff is employed ‘at a rate’ of compensation. It does not state that he is employed for one year or any other period. The company does not agree to pay him this compensation for each of the three years mentioned, but at the rate of certain yearly amounts for each of the three years in case he is there. An increased scale is provided for in case the plaintiff remains in defendant’s employ during the periods mentioned. It is a contract fixing the rate of compensation but not fixing the term of employment.”
Defendant insists it could terminate the contract at will if it desired and cites in support of its contention Martin v. Insurance Co., 148 N. Y. 117 (42 N. E. 416); Stein v. Kooperstein, 102 N. Y. Supp. 578; Orr v. Ward, 73 Ill. 318; and other authorities cited in the “brief of counsel.
It must be admitted there is a conflict in the authorities. In Massachusetts the rule is not as contended for the appellant. We quote from Maynard v. Royal Worcester Corset Co., 200 Mass. 1 (85 N. E. 877), as follows: “The evidence was somewhat conflicting, but having regard only to its aspects most favorable to the plaintiff (as we must in passing upon the action of the judge of the superior court), would justify a finding that he had been in the employ of the defendant for several years, with the duty, among others, of figuring costs; he was also a director of the company, and always received his pay weekly; the financial year of the defendant began on the first day of December, and on December 9, 1904, its board of directors voted that the salaries of the president, treasurer, clerk, one Bennett and the plaintiff ‘be increased twenty per cent, on the amount of their salaries for the year 1904;’ a short time thereafter a single payment for the amount so voted for the year then just ended was made to the plaintiff; under date of December 20, 1905, the defendant’s board of directors passed a vote respecting the same persons, that their ‘salaries * * * be increased twenty per cent, on the amount of their present salaries for the year 1905;’ on December 12 or 14, 1906, the treasurer of the defendant said to the plaintiff, ‘Mr. Fanning requests me to say your salary for the coming year will be $5,000, and he also wished me to state that your last year’s salary will be $5,000;’ the salary for the year preceding .had been $4,000, and $1,000 was immediately paid to the plaintiff, and the weekly payments thereafter made were on the basis of $5,000 per year; about the middle of September, 1907, Mr. Fanning, the president of the defendant who was authorized to employ and discharge employees and fix their salaries, said to the plaintiff, that unless he changed certain conditions, his contract would terminate January 1, to which the plaintiff replied, ‘If you wish * * * I will accept and make my plans accordingly January first.’ In the latter part of September the plaintiff was discharged without adequate cause.
“Whether there is a contract for services for a definite period of time in any case depends upon all the attendant conditions surrounding the agreement, as well as upon its terms, when the latter are not specific and clear. Several features tend to support the contention that the plaintiff was employed for a year from the first of December, 1906. For three years at least there had been' an annual readjustment of compensation early in December. Where there has been a recognition of annual employment, the bare continuance of service after the expiration of the term without anything being said is of some importance in the inquiry, whether the contract of service is renewed by implication for the like period. Dunton v. Derby Desk Co., 186 Mass. 35 (71 N. E. 91). The word ‘salary’ was used both in the vote of the board of directors for the years 1904 and 1905 and in the conversation between the treasurer of the defendant and the plaintiff, in describing the compensation which the plaintiff was to receive. This word is perhaps more frequently applied to annual employment than to any other, and its use may import a factor of permanency. Henderson v. Koenig, 168 Mo. 356 (68 S. W. 72, 57 L. R. A. 659); People v. Myers, 11 N. Y. Supp. 217. See sub nomine Burrill’s Law Dictionary. The unit of time used in describing the compensation was one year. In many jurisdictions this fact standing alone is regarded as sufficient evidence of the term of employment, and perhaps this is the implication of Nichols v. Coolahan, 10 Metc. (Mass.) 449. Although some courts hold that a hiring at so much a year, where no time is specified, is indefinite and may be terminated at will (see Martin v. Insurance Co., 148 N. Y. 117 [42 N. E. 416]; Pinckney v. Talmage, 32 S. C. 364; Prentiss v. Ledyard, 28 Wis. 131; Haney v. Caldwell, 35 Ark. 156; Parlett v. Guggenheimer, 67 Md. 542 [10 Atl. 81, 1 Am. St. Rep. 416]; Orr v. Ward, 73 Ill. 318; The Pokanoket, 84 C. C. A. 49, 156 Fed. 241), the weight of authority is that this circumstance alone, in the absence of any other consideration impairing its weight, will sustain a finding that there was a hiring for that period. Emmens v. Elderton, 4 H. L. Cas. 624, 640; Buckingham v. Surrey & Hants Canal Co., 46 L. T. (N. S.) 885; Foxall v. International Land Credit Co., 16 L. T. (N. S.) 637; Chamberlain v. Detroit Stove Works, 103 Mich. 124; Beach v. Mullin, 5 Vroom [N. J. Law], 343; Moss v. Decatur Land Improvement & Furnace Co., 93 Ala. 269 (9 South. 188, 30 Am. St. Rep. 55); Young v. Lewis, 9 Tex. 73; Kellogg v. Insurance Co., 94 Wis. 554, 558 (69 N. W. 362); Magarahan v. Wright, 83 Ga. 773 (10 S. E. 584); Smith v. Theobald, 86 Ky. 141, 146 (5 S. W. 394); Kirk v. Hartman, 63 Pa. St. 97; Luce v. San Diego Land & Town Co. (Cal.), 37 Pac. 390; Horn v. Western Land Ass’n, 22 Minn. 233; Cronemillar v. Duluth-Superior Milling Co., 134 Wis. 248 (114 N. W. 432); Jones v. Vestry of Trinity Parish, 19 Fed. 59. Without reviewing the cases or analyzing the principles to determine which is the sounder view, it is enough to say that the use of the sum of money equivalent to a year’s pay, in describing the amount which the plaintiff was to receive, was proper for consideration in connection with other incidents. The length of the term of service reasonably inferable as the understanding of the parties, from their words, course of dealing and other acts, was a fact to be determined upon all the evidence. Grouping all these circumstances, and giving them the color most favorable to the plaintiff, as the trial judge had a right to do, we cannot say that his finding, that the contract alleged in the first count was made, was unjustified. Tatterson v. Suffolk Manfg. Co. 106 Mass. 56.”
See, also, Franklin Mining Co. v. Harris, 24 Mich. 115; Graves v. Lyon Bros. & Co., 110 Mich. 670; Chamberlain v. Detroit Stove Works, 103 Mich. 124.
We do not think the language of the contract is ambiguous. When it is said: “We will agree to pay you at the rate of $6,000 the first year, $6,600 the second year, arid $7,200 the third year” it is fairly inferable that a hiring for three years is contemplated and offered and, when accepted, it is a hiring for three years; and we so construe the language used.
This conclusion makes it unnecessary to discuss the second question raised by counsel for appellant.
Was the defendant justified in terminating plaintiff's employment? This was a question of fact. We have a record of more than 400 pages. The great bulk of this record is devoted to testimony bearing upon the question stated under this head. The question was submitted to the jury upon a fair charge in which the court gave defendant’s written requests bearing upon that subject. The jury found in favor of the plaintiff.
Did Mr. Hayes have authority to make a three-year contract of employment on behalf of defendant. It is claimed he did not by the appellant. We quote from the brief:
“The by-laws of the company provide that the management of the affairs of the company shall be vested in a board of nine directors. The board shall determine who has power to sign contracts and has power to delegate any power in current business to any committee or officer. The president shall have general supervision over the affairs of the company subject to the board of directors. In 1909 the board passed a resolution to the effect that where it was necessary to sigii contracts with employees that the opinion of members of the board regarding such contracts should be secured previous to signing same. This resolution has never been changed.”
Mr. Hayes was president of the defendant company when the letter was written and had been for years. He was sworn as a witness. We quote some of his testimony:
“Mr. Smith was very active with the Hayes Manufacturing Company, in fact was our counsel, and I took up all these matters with him. I had a conversation with Mr. Smith regarding the contract of employment between the Hayes Manufacturing Company and Mr. Loew. I do not recall the date but it was before Mr. Loew was hired. Mr. Smith was a director of the company at that time.
“I had a conversation with Mr. Carrow in the latter’s office about the contract of employment between the Hayes Manufacturing Company and Mr. Loew sometime before Mr. Loew was employed. Mr. Carrow was secretary and treasurer of the company and also a director. There were seven directors in all. Besides Mr. Smith, Mr. Carrow and myself they were: Mr. H. H. Sanger, connected with the National Bank of Commerce; Mr. Frank W. Blair, of the Union Trust Company; Mr. James H. Flynn; and Mr. Carleton Higbie, a broker of this city. * * *
“Mr. Sanger was vice-president and acted as president during my absence at the directors* meetings. He did not take any more active part. Mr. Blair, Mr. Flynn and Mr. Higbie were not active. Mr. Smith was active in the affairs of the company in the fall of 1917 and the first six months of 1918. The company was in war work. We were in Washington together trying to get contracts. He was not as active however as Mr. Carrow, who was the secretary and treasurer and devoted all his time to the affairs of the company.”
Mr. Hayes testified in great detail as to the many and the important contracts he made on the part of the company. The trial judge charged the jury in part as follows:
“The first question for your consideration is this: Is this agreement the agreement of the defendant company? Unless it is they are not liable in this action. The determination of this question depends upon whether Mr. Hayes, president of the defendant company, had implied authority to enter into the contract, and if he did not have such implied authority, then was the agreement made without authority, after-wards ratified by the defendant company?
“It is the claim of the plaintiff that while there is no evidence of any express authority given by the defendant company to its president, Mr. Hayes, to sign this contract of employment, that the testimony in the case regarding Mr. Hayes’ duties at the defendant company, shows that he had implied authority to sign the contract. * * * That the testimony in the case regarding Mr. Hayes’ duties as president of the defendant company shows that he had implied authority to sign the contract, that is, that the scope and intent of his authority as president, from the nature of the duties he was given and allowed to perform, was such that this defendant company held Mr. Hayes out to the world at large and to Mr. Loew, the plaintiff, as being clothed with sufficient authority to make and sign the contract. If the defendant company held out Mr. Hayes, its president, as being clothed with sufficient authority to make and sign the •contract, then the defendant company would be liable for his act in so doing.
“The plaintiff also claims that the contract in question at about the time it was made, was called to the attention of certain officers - and directors of the defendant company aside from its president, who had knowledge of its terms while plaintiff was working for the defendant company.
“The defendant claims that Mr. Hayes, as president, had no authority to enter into any such contract and that it was never in any manner ratified by the defendant company.
“I charge you as a matter of law, that the management of the defendant company was vested in its board of directors by the by-laws and that the only powers of the president, Mr. Hayes, as disclosed by the bylaws were the general supervision of the affairs of the company subject to the board of directors. The directors have not expressly, by resolution, empowered Mr. Hayes to make this contract with the plaintiff or to make any contracts of employment generally; but the question arises, Has the defendant held out Mr. Hayes as having apparent authority to make this contract or has it ratified the act of Mr. Hayes?
“If you find that the defendant has not done these things, your verdict must be for the defendant.
“The defendant claims that Mr. Hayes has never been in the habit of making contracts with employees for a term of years without the approval of the directors, that this is the first instance of that kind. The defendant also claims that it never knew of the existence of a written contract until about the time that the plaintiff was discharged and so could not have ratified it. The defendant does not claim that it did not know the plaintiff was employed, but that it had a right to assume that his employment was no more than a monthly basis, which was the only basis of employment of all the important officials in existence at the time.
“The defendant also claims that the meeting between Mr. Loew, Mr. Hayes, Mr. Smith and Mr. Car-row was sufficient to at least notify the plaintiff that Mr. Hayes was not the sole person in authority and that Mr. Loew should have seen to it that the con tract was approved by the directors. If these contentions are correct, I charge you that your verdict should be for the defendant.
“Unless you find by a preponderance of the evidence that either the president, Mr. Hayes, had implied authority to make the contract, or that the contract was ratified by the defendant company, then your deliberations will cease at that point and your verdict be for the defendant, no cause for action.”
The case was tried with great care. We find no reversible error.
The judgment is affirmed, with costs to the appellee.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.
duration of contract of hiring which specifies no term, but fixes compensation at a certain amount per day, week, month, or year, see notes in 25 L. R. A. (N. S.) 529; 51 L. R. A. (N. S.) 629. | [
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] |
Moore, J.
Each of the parties to this litigation asked for a directed verdict. The trial judge charged the jury as follows:
“Gentlemen of the jury: By wire and letter the defendant ordered of the plaintiff 110 42-inch length United States regulation overcoats for delivery in Detroit not later than Tuesday, November 26, 1918. This order was accepted by plaintiff. The coats were for use in a Thanksgiving day parade. The plaintiff did not deliver the overcoats in Detroit until subsequent to Thanksgiving day, delivery being made in two lots, one of two trunks and one of three trunks.
“On November 29th that being the day following Thanksgiving day, and at a time when the two trunks had been delivered to the defendant, the defendant wrote the plaintiff among other things as follows:
“ ‘We have opened the first two cases and we find that they are not as ordered — not one of them 42 inches as we. designated in our order; 12 of them were half lined and colors impossible to use. In fact, they look like a very poor lot of merchandise. Awful sorry this happened and we think you did the best you knew how, but the fact remains that they are not what we ordered — they are all mixed colors of all kinds. Kindly advise us what disposition to make of them and oblige.’'
“The complete shipment was received on Saturday, November 30th. On that day defendant wrote plaintiff:
“ ‘We have just received the three trunks this morning. I do not know what we will do with our customers, they are very sore. We are returning to you today 17 coatsi that are absolutely no use to us. We think we may be able to get rid ‘Of these coats Monday, if notj all of them, as many as we can. Tt is unfortunate — we know you did all you could, but that does mot help in the least under the conditions. Rather afraid they ;.got track of some other coats, but we will do the best we can :and see if we cannot get rid of them between now and Monday. lEvery one of the coats will have to be shortened if I get rid of them which I think is possible. They are all 47 and 48 inches long. I would not have returned the 17, but would not care to offer them to our customer under any circumstances.’
“On December 4th the defendant wrote plaintiff as follows:
“ ‘We have yours of the 2nd inst. and regret exceedingly the conditions, and do not think that we do not appreciate your efforts, but the fact still remains that we ordered 110: coats, to be 42 inches long, delivery to be made so we could deliver them for the Thanksgiving parade, and unfortunately they did not arrive. We returned 17 of the coats for the simple reason that we could not use them at any rate, they are npt what we want, in fact, all of the coats will have to be shortened and it looks now as though we will be able to sell them. If it had been anybody but yourself that we purchased these coats from we would have returned them all as they do not fill the bill as to length, etc. We appreciate your efforts and will shorten them as they will not accept them unless they are shortened — they all want 42-inch coats. I know of no arrangement made with you that we were to keep these coats, that they were not to be returned. You wrote us to that effect, but we had no opportunity to answer simply because you left New York with the garments. It is all right, we will retain the 100 coats, and thank you very much for your trouble!
“On December 5th the defendant wrote plaintiff as follows:
“ ‘Since writing you yesterday, when we felt we had a reasonable assurance that we might possibly get rid of the coats, we shortened 3 of them, but the whole effect of the coat is spoiled— it has no appearance of a short coat whatsoever, and our customer absolutely refuses to accept them. There is nothing we can do, unfortunately, but to send them back. Wire us as to disposition!
“A few of the coats were shortened and some effort was made to sell them. Plaintiff refused to accept the return of the 17 coats when tendered to him. This action is now brought to recover the purchase price of the coats and a motion has been made on behalf of both plaintiff and defendant for a directed verdict, it being agreed that the questions presented are ones of law rather than of fact. It must be taken as an established fact that the plaintiff in this case did not perform his contract either with respect to the kind of goods ordered or as to the time of delivery and if he is entitled tó a verdict here, it must be based upon some act of the defendant which amounted to a waiver of strict performance of the contract. There can be no question but that the buyer may waive the provisions of the contract as to quality^ kind or quantity; he may accept and become bound to pay for goods he never ordered; he may accept more or less than the stipulated quantity; he may accept goods of a different kind than those agreed upon ;• he may accept at a time or place other than that specified, and he may signify this acceptance not only expressly but impliedly and his implied acceptance may be found to be given, where, without dissent within a reasonable time he receives and retains goods delivered not in conformity to the contract or where he subsequently deals with them as owner.
“Defendant shortened some of the goods in question without the plaintiff’s consent, and expressly stated in the letter of December 4th that they would retain 102 of the coats. It seems to me that under the circumstances the defendants must be held to have waived the strict performance of the contract in question, insofar as the 102 coats are concerned. I therefore direct you to find a verdict for the plaintiff for the sum of $2,244, less 5% allowance conceded by plaintiff with interest at 5 per cent, from December 4th or total of $2,297.60. You may rise in your seats and the clerk will take the verdict.”
Judgment for plaintiff for $2,297.60 was entered August 25, 1921. The defendant brings the case here by writ of error. The plaintiff contends the judgment is too small but has not brought error.
The defendant contends that he rejected the goods received as not being in compliance with the contract; that he thereafter made an offer to the plaintiff to retain part of the goods; that because this offer was not accepted, in fact rejected, the defendant is not liable to the plaintiff for any part of the goods. The defendant’s chief reliance is upon Jones v. Bloomgarden, 143 Mich. 326.
The trouble with the contention of the appellant is that it is not borne out by the record. Not only did the defendant write plaintiff December 4th, “It is all right, we will retain the 102 coats and thank you very much for your trouble,” but proceeded to shorten some of the coats and also put them all in stock and offered them for sale, and would have sold them if it could have found a customer, according to the testimony of the president of the defendant company, who was called as an adverse witness by the plaintiff.
The trial judge was justified in directing a verdict. See Mechem on Sales (1901 Ed.), § 1374; Farrington v. Smith, 77 Mich. 550; Rubin v. Crowley, Milner & Co., 214 Mich. 365.
Judgment is affirmed, with costs to the appellee.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.
waiver of right to rescind for breach of warranty or noncompliance with contract, see note in 36 L. R. A. (N. S.) 468. | [
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Sharpe, J.
The plaintiff was injured by a Ford touring car, driven by the defendant Ronis, on Jefferson avenue in the city of Detroit on April 3, 1920. The declaration complained of the defendants as individuals and as “doing business as Michigan Window Cleaning Company.” The negligence complained of was the operation of the automobile in a reckless and negligent manner and the running of it inside the limits of a “safety zone” in which plaintiff was standing. The plea was the general issue. Plaintiff testified that both defendants were in the car at the time it struck her. She was carried into a nearby drug store and afterwards removed to a hospital, the defendant Bomze driving the car during such removal and the defendant Ronis sitting in the back seat and affording her support. Dr. Seibert, who attended her at the hospital, and her husband, Edgar Charles Collard, testified as to her injuries. The city clerk produced the ordinance of the city providing for the establishing of safety zones, etc. The plaintiff then rested.
Defendants’ counsel thereupon moved for a directed verdict for both defendants on the ground that no actionable negligence was proven, and also on behalf of the defendant Bomze for the reason that there was no evidence connecting him with the ownership or the operation of the car. The court intimated that as to Bomze the motion seemed to be well founded, whereupon plaintiff’s counsel asked and was granted leave to submit further proof. Both defendants were then called as adverse witnesses and examined at length. Ronis admitted that he owned the car. He denied that he was working for Bomze or that they were in any way engaged in business together. He testified that Bomze, who was an unmarried man, was rooming at his home and was riding with him: to his (Bomze’s) office, near where the accident happened; that when stopped by the traffic on Jefferson avenue Bomze alighted and was not in the car at the time plaintiff was injured. Bomze’s testimony was to the same effect. He explained his presence in the drug store by saying that when near the stairway leading to his office he stopped and soon after saw plaintiff being carried into the drug store; that he afterwards drove the car to the hospital as an accommodation and to assist Ronis in caring for plaintiff.
It was apparent that no proof had yet been offered to charge Bomze with liability. Plaintiff’s brother, Roy A. Foster, was then called. He testified that he had not been in court on the preceding day when the motion to direct was made, though he had met plaintiff’s counsel before that time in his office. He further testified that at his sister’s request he “made some investigation of this case. I first saw Mr. Bomze * * * at his office on Bates street, and had a talk with him.” That he saw a Ford touring car in front of the office with ladders on it; that Bomze said Ronis “was only working for him.” That he had been to police headquarters, where he was informed of the license number of the car but made no effort to ascertain the name of the owner, though he knew where he could do so. He did not examine the number on the car standing in front of Bomze’s office.
Bomze, being recalled, denied the conversation with Foster. He testified that after the accident he bought a Ford car for his own use and the license was in the name of the Michigan Window Cleaning Company, a copartnership, composed of himself and William C. Roesler.
The motion to direct a verdict as to defendant Bomze was then renewed and denied. The case was submitted to the jury under instructions that to find against Bomze the proofs must satisfy, them either that Ronis was in the employ of Bomze or was operating the car under his instructions. The jury rendered a verdict for plaintiff against both defendants for $800. Defendant Bomze’s motion for a new trial, on the ground that the verdict was against the great weight of the evidence, was denied. The judgment is here reviewed by him by writ of error. The assignment discussed is the refusal to grant a new trial for the reason stated.
The duty imposed on this court under the statute (3 Comp. Laws 1915, §i 12635) to review the action of the trial court in refusing to grant a new trial has been pointed out in so many cases that we content ourselves with calling attention to a few of them. Hintz v. Railroad Co., 132 Mich. 305; In re McIntyre’s Estate, 160 Mich. 117; Krouse v. Railway, 166 Mich. 147.
The only testimony tending in any way to connect the defendant Bomze with the injury sustained by plaintiff is her statement that he was riding in the car with Ronis, and that of Foster, her brother, that Bomze said Ronis was working for him. The statement of the plaintiff was not sufficient on. which to predicate liability. It must rest on the testimony of Foster. The fact' that he was not called until plaintiff’s counsel had endeavored in every other way to make such proof is significant. As against his testimony, we have the denial of Bomze that such statement was made by him and the positive testimony of both Bomze and Ronis that the latter was not in the employ of the former at that time.
It is but fair to require plaintiff to submit such proof as is available to sustain the burden cast upon her by the law. There may be cases where the right of a plaintiff to recover is dependent upon the testimony of a single witness and unless there be something in the record to discredit such testimony we should hesitate in setting aside a verdict based on it, though contradicted by interested witnesses for the defense. The plaintiff might easily have ascertained in whose name the license for the car which injured her was taken out. Ronis testified he was the owner of the car and the license was in his name. If this be true, and we must so assume, it tends to negative the claim that he was in the employ of Bomze, as an employee does not usually furnish a car for the use of his employer.
While reluctant to interfere with the discretion exercised by the trial court in denying defendant Bomze’s motion, after a careful reading of the entire record we are of the opinion that the verdict is so against the great weight of the evidence as to necessitate the reversal of the judgment and the granting of a new trial. It is so ordered. Defendant Bomze will recover his costs in this court.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Moore, J.
The plaintiff brought this action claiming that he was entitled to a judgment for the difference between the market price of two car loads of newspaper, on or about September 1, 1920, $46.71 per ton, and the contract price of the same, $34 per ton. At the conclusion of all the testimony each party made a motion for a directed verdict. The court directed a verdict for defendant in the sum of $231.82, this being the difference between the contract price and the price defendant received for the paper after defendant claims plaintiff refused to receive it. From a judgment upon this verdict the case is brought here by writ of error.
There is very little dispute in the facts. The transaction rests almost wholly in correspondence. After some preliminary correspondence the plaintiff wrote defendant July 30, 1920:
“I hereby confirm purchase of three cars clean newspaper in bales and solid bdls. at $34.00 less 3% Kalamazoo frt. rate ship same to my order St. Joseph, Mich., and oblige.”
On July 31st, defendant wrote plaintiff in substance that the sale was made for delivery at Kalamazoo; that he had trouble with the mills at St. Joseph and did not desire to ship to them.
“If you can use the material in Kalamazoo, please let me hear from you with shipping directions. Otherwise it will be necessary to cancel the order.”
Two days later plaintiff wrote defendant assuring him there would be no trouble in shipping to St. Joseph.
“You can try them with one car first and hold up shipment of balance two cars until you hear from the first if you want to. I will guarantee myself that you won’t have any trouble.”
On August 3, 1920, defendant again wrote plaintiff he could not ship to St. Joseph. August 4, 1920, after a talk over the long distance telephone it was agreed the paper would be shipped to St. Joseph. September 3d, plaintiff inquired in writing of defendant:
“How soon can I expect a car of newspaper from you the mill is getting anxious about it and oblige.”
On the 16th day of September, 1920, the plaintiff wrote the defendant:
“In reference to three cars of newspaper due me as per our contract must have shipment on same in next few days — or will be obliged to go out on open market for same and charge difference to your account — as mill is very strong after me. Trusting I will not be forced to do this, I remain.”
On the 18th day of September, 1920, the defendant wrote in answer to the above letter:
“Wish to say that shipment of one car will be made next week, and the balance will follow immediately.”
On the 28th day of September, 1920, the defendant shipped to the plaintiff one car load billed to St. Joseph, Michigan, and that said car load arrived in St. Joseph on October 1, 1920, where it was accepted.
On the 18th day of October, 1920, the plaintiff wrote the defendant:
“Enclosed please find check for $337.32 in payment in full for car newspaper shipped to my order St. Joseph, Mich. Hoping you will find same satisfactory. * * * How soon can I expect the two cars of newspaper due me on order yet hope you will ship same at once the mill is liable to cancel the order on me and oblige.”
The next day the defendant wrote the plaintiff: “The newspaper due you will go forward shortly.” On October 26th the defendant telegraphed plaintiff:
“Shipping car ten three seven three N. K. P. loaded with newspapei’. Invoice will follow when railroad rates are obtained.”
No answer was made to this telegram. The car of newspaper referred to in the telegram arrived in St. Joseph, consigned to the order of the plaintiff, on October 29, 1920. Defendant’s proof shows that he had to pay $40 a ton for the newspapers shipped to plaintiff in this car and plaintiff’s proof did not contradict this.
On October 29, 1920, the plaintiff wrote defendant:
“I just received wire from the mill in reference to the last car of newspaper shipped to me that they refused to take in the car only on the market price upon arrival. If same is satisfactory to you kindly advise me at once. Also on next car on same basis.”
On October 29, 1920, defendant shipped the third car, which arrived in St. Joseph on November 1,1920, consigned to the order of the plaintiff.
On the 1st day of November, 1920, the plaintiff wired the defendant:
“Mill refused to take newspapers unless price reduced market worth day arrival. Wire disposition.”
The plaintiff refused to accept the last two cars for the reason that the market broke to $25 per ton while the cars were in transit, but he claims he had the right to refuse them because of the delay. The defendant sold the two car loads which were refused by the plaintiff at the market price of newspaper on November 1,1920, for $25 a ton. The market price of newspaper at St. Joseph, Michigan, from August 1, 1920, until October 29, 1920, was $46.71 per ton, including freight charges on same.
It was claimed by plaintiff in his testimony that there is a general custom between sellers and buyers in transactions identical with the one in controversy, which fixes the time limit for delivery of goods bought, when no definite time for delivery is set, at 30 days from the date of the making of the contract of sale, or of the giving of the order for the purchase of the same, but defendant and a paper manufacturer who was a witness for plaintiff, testified that they knew of no such custom, but the latter could not swear that no such custom existed. No time for delivery of any of this newspaper was specified in the contract except as indicated by the correspondence.
The position of defendant in this case is stated by counsel as follows:
“(1) There was no time specified for delivery in this contract and defendant was required only to make delivery within a reasonable time, and the correspond ence between the parties and acts and conduct of plaintiff conclusively established that delivery was made within a reasonable time and that any delay was waived by plaintiff.
“(2) There was a delivery to plaintiff by defendant prior to any attempt on the part of plaintiff to rescind the contract.
“(3) The refusal of plaintiff to accept the last two cars of paper constituted a breach of the contract by plaintiff, resulting in a loss to defendant, for which he was entitled to recover in this action.”
Plaintiff insists that he was, under the undisputed facts, entitled to a judgment for the difference between the market price of two car loads of newspaper, on or about September 1, 1920, or $46.71 per ton, and the contract price of the same, or $34 per ton; that even admitting the liability of the plaintiff for the nonacceptance of the last two car loads of newspaper, the trial court erred in allowing defendant damages on the actual weight of the said two car loads; that even admitting the liability of the plaintiff for the nonacceptance of the last twoi car loads, there should have been a verdict directed for the plaintiff for the difference between the damages he sustained and the damage sustained by the defendant. Each of these contentions is argued at length.
After reviewing the evidence at considerable length, the trial judge expressed the opinion that
“Under these circumstances the court is bound to hold that the paper was shipped to the plaintiff within a reasonable time — in other words, that the correspondence^ between the parties and the conduct of the parties with reference to this transaction .was such that the paper was shipped within a reasonable time, and it was the duty of this plaintiff to accept those two car loads of paper when they arrived in St. Joseph.”
The correspondence we have quoted shows that on October 18th' the plaintiff sent defendant a check for the first car load and inquired how soon he could expect the other two cars, and was promptly advised of the time and one car went forward only 8 days later, and 11 days later the last car was sent. We think the trial judge was justified in holding they went forward in reasonable time. This conclusion makes it unnecessary to discuss the assignments of error in detail.
The judgment is affirmed, with costs to the defendant.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Bandstra, J.
The trial courts determined that § 628(H) of the Michigan Vehicle Code, MCL 257.628(11), was enacted in violation of art 4, § 25 of the Michigan Constitution of 1963, which states, “No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.” We conclude that § 628(11) constitutes an amendment of the Insurance Code, MCL 500.2103(4)(a)(iii), within the meaning of this constitutional provision and that its enactment did not comply with the provision. We reject plaintiffs’ arguments that Const 1963, art 4, § 25 does not apply because the act containing vehicle code section 628(11) was “complete in itself” and that it only amended the Insurance Code “by implication.” Further, we conclude that it is irrelevant that the act did not expressly reference the Insurance Code. We affirm the decisions of the trial courts.
BACKGROUND FACTS
The Insurance Code allows insurance companies to consider speed limit violations in assessing “insurance eligibility points” for the purpose of determining whether and at what premium rates to provide insurance to drivers. See, e.g., MCL 500.2103(1)(h), 500.2118(2)(b), and 500.2120(3)(e). With respect to the issue presented here, two insurance eligibility points may be calculated against a driver “[f]or a violation of any lawful speed limit by 10 miles per hour or less . . ..” MCL 500.2103(4)(a)(iii) (the 2-point rule). Notwithstanding that then-existing provision, the Legislature amended the vehicle code in 1987, and added a provision disallowing the imposition of any insurance eligibility points for ten mile per hour (or less) speed limit violations in one specific instance:
A citation or civil infraction determination for exceeding a lawful maximum speed limit of 55 miles per hour by driving 65 miles per hour or less shall not be considered by any person in establishing automobile insurance eligibility or automobile insurance rates. [MCL 257.628(11) (the 55 mph speed zone exception); see 1987 PA 154.]
Shortly after vehicle code § 628(11) was enacted, the Attorney General issued an opinion regarding its effect on the Insurance Code’s 2-point rule. OAG, 1982-1988, No 6,552 p 438 (December 2, 1988). The Attorney General concluded that the enactment of vehicle code § 628(11) violated Const 1963, art 4, § 25 because it constituted an amendment of Insurance Code § 2103(4)(a)(iii) without any reenactment or republication of the Insurance Code. OAG, supra at 439-440. Accordingly, Michigan insurers have been using the 2-point rule to impose insurance eligibility points for ten mile per hour (or less) speed limit violations in all cases, including those occurring in a 55 mph speed limit zone.
Plaintiffs in these consolidated class actions contend that the Attorney General erred in this determination and that, accordingly, they are entitled to a remedy for adverse insurance decisions made by Michigan insurers in violation of the 55 mph speed zone exception. The trial courts rejected this argument and granted summary disposition in favor of defendant insurance companies.
ISSUE PRESENTED AND STANDARD OF REVIEW
Plaintiffs claim that Const 1963, art 4, § 25. does not properly apply to the enactment of the 55 mph speed zone exception. Questions regarding the constitution ality of a statute are matters of law that we review de novo. DeRose v DeRose, 469 Mich 320, 326; 666 NW2d 636 (2003).
ANALYSIS
Const 1963, art 4, § 25 provides:
No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.
The interpretation and application of this provision is governed by Alan v Wayne Co, 388 Mich 210; 200 NW2d 628 (1972), the most recent binding authority available. Factually, Alan presented a question similar to the one we address today. At issue here is the constitutional propriety of the enactment of a 55 mph speed zone exception to the general Insurance Code 2-point rule. Similarly, in Alan, our Supreme Court considered the same constitutional question as it pertained to provisions of the 1948 Building Authority Act that created a “serial or term bonds” exception to the 1933 Revenue Bond Act. Alan, supra at 237, 270.
The Alan Court began its analysis by considering whether the case presented a “so-called ‘amendment by implication,’ ” not subject to the constraints of Const 1963, art 4, § 25. The “amendment by implication” exception was first recognized in People v Mahaney, 13 Mich 481, 496 (1865). Alan, supra at 270. At issue in Mahaney was legislation that established a police government for the city of Detroit and that abolished the previous offices of city marshal and assistant city marshal, which had apparently been authorized by previous legislation. Mahaney, supra at 490. Writing for the Mahaney Court, Justice Cooley briefly reasoned that the law establishing the police government did not run afoul of the predecessor of Const 1963, art 4, § 25 (Const 1850, art 4, § 25):
The act before us does not assume in terms, to revise, alter or amend any prior act, or section of an act, but by various transfers of duties it has an amendatory effect by implication, and by its last section it repeals all inconsistent acts. We are unable to see how this conflicts with the [constitutional] provision referred to. [Mahaney, supra at 496].
In contrast, the Alan Court determined that the case before it did not present an “amendment by implication.” In so deciding, the Alan Court relied on principles stemming from another case authored by Justice Cooley, Mok v Detroit Bldg and Savings Ass’n No 4, 30 Mich 511 (1875). Alan, supra at 271. In Mok, our Supreme Court considered an 1869 act providing for the incorporation of building and savings associations:
“[T]he act of 1869 ... undertook... to dispense with some things required by [previous legislation], and to make some changes. It provided that the articles of association need not state the amount of capital stock actually paid in; that it should be contributed in initiation fees and in weekly or monthly sums as should be provided by bylaws . ...” [Alan, supra at 272, quoting Mok, supra at 521-522 (emphasis deleted).]
The Mok Court determined that its case did not present an amendment by implication similar to that considered in Mahaney and that the amendment had been passed in derogation of the Constitution:
“The [previous legislation] has been, for the purposes of building and savings associations, incorporated in and made a part of the act of 1869, but with several changes and modifications, and these not made by the re-enactment of the changed or modified, but only by indicating the extent of the changes, leaving the parties concerned to fit the new act to the old as best they may ....
“What has been attempted here is, to duplicate an act, but at the same time to accommodate it by indirect amendments to a new class of cases, in disregard of the constitutional provision which requires each act of legislation to be complete in itself, and forbids the enactment of fragments which are incapable of having effect or of being understood until fitted into other acts after by construction or otherwise places have been made for them. No such legislation can be sustained.” [Alan, supra at 272, quoting Mok, supra at 523, 529 (emphasis deleted).]
On the basis of its review of Mok and other precedents, the Alan Court concluded that the “amendment by implication” exception should apply only in “those limited kinds of cases” in which
because of a special fact situation a court is faced with two accidentally absolutely conflicting statutes requiring a determination that one or the other applies (and thus an amendment or repeal of the other by implication follows in the fact circumstances). These kinds of cases do not result from any deliberate misleading by the Legislature or failure to make all reasonable efforts to make clear in the statutes what is intended, but rather, as we said in Mok, 517 “[i]t is probable that if the requirement has at any time been disregarded by the legislature, the default has proceeded from inadvertence merely” [Alan, supra at 285-286 (emphasis added).]
Plaintiffs here contend that vehicle code § 628(11) constitutes an “amendment by implication” of Insurance Code § 2103(a)(4)(iii) under Mahaney, but, considering the analysis of Alan, we disagree. 1987 PA 154, by which the 55 mph speed zone exception was enacted, was not a general act that, as a result of some special fact situation, presents an accidental conflict with the 2-point rule of the Insurance Code. The conflict between the two is not one resulting from m,ere inadvertence. To the contrary, vehicle code § 628(11) quite clearly resulted from a legislative knowledge of the Insurance Code’s 2-point rule and an intent to abrogate that rule with respect to 55 mile per hour speed zone violations. The 55 mph speed zdne exception constitutes a “fragment[ary]” attempt to “accommodate [the 2-point rule] by [an] indirect amendment[]” that can only be understood or given effect by “fitt[ing]” the two acts together. See Alan, supra at 272. “ ‘No such legislation can be sustained.’ ” Id., quoting Mok, supra at 529. “[W]hen the Legislature intends to amend a previous act, it must do so in conformance with the plain and unequivocal requirements of. . . Const 1963, art 4, § 25.” Alan, supra at 275.
We also reject plaintiffs’ closely related contention that 1987 PA 154 was “an act complete in itself” and, thus, not subject to Const 1963, art 4, § 25. Again, the suggested exception to the constitutional provision advanced here originated in Mahaney.
An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent. [Mahaney, supra at 497.]
Similarly, the Alan Court quoted with approval from Justice Potter, dissenting in People v Stimer, 248 Mich 272, 293; 226 NW 899 (1929):
“ ‘The character of an act, whether amendatory or complete in itself, is to be determined [. . .] by comparison of its provisions with prior laws left in force, and if it is complete on the subject with which it deals it will not be subject to the constitutional objection, but if it attempts to amend the old law by intermingling new and different provisions with the old ones or by adding new provisions, the law on that subject must be regarded as amendatory of the old law and the law amended must be inserted at length in the new act.’ ” [Alan, supra at 278-279 (citations omitted; emphasis deleted).]
Under this analysis, 1987 PA 154 was not an “act complete in itself.” The subject matter of the contested vehicle code § 628(11), the imposition of insurance eligibility points, is not addressed comprehensively within 1987 PA 154. Instead, vehicle code § 628(11) is a piecemeal amendment to an existing comprehensive statutory scheme regarding insurance eligibility points and speed limit infractions. 1987 PA 154 “attempted] to amend the old law by intermingling new and different provisions with the old ones” found in the Insurance Code. Alan, supra at 279, quoting Stimer, supra at 293 (Potter, J., dissenting) (citations deleted; quotation marks deleted; emphasis deleted). Thus, 1987 PA 154 was not an act complete in itself, and Const 1963, art 4, § 25 applied to its enactment.
Plaintiffs further contend that, because 1987 PA 154 did not make any express reference to the Insurance Code, Const 1963, art 4, § 25 does not apply. Plaintiffs point out that the first sentence of Const 1963, art 4, § 25 only proscribes amendments “by reference.” The Alan Court expressly rejected this same argument after considering Mok and Burton v Koch, 184 Mich 250; 151 NW 48 (1915).
Burton .. . stands for the rule that you can amend statute C by putting in statute B words for the purpose of amending statute C so long as you make no specific reference to C ... .
Mok says the constitution requires you to do the whole job right. Burton says it is good enough to do the job half right....
This Court is convinced the constitution is not satisfied with halfway measures and does not prefer dissimulation to straightforwardness. We adopt the rule of Mok and overrule Burton. [Alan, supra at 281 (emphasis deleted).]
See also Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 517-518; 208 NW2d 469 (1973) (Williams, J., dissenting) (“[I]f a minimal reference such as to ‘title only’ is insufficient, no reference at all is even less sufficient. . . . The purpose of art 4, § 25 is to give notice and certainty. Obviously if reference to the title only is not enough for notice and certainty, giving no reference at all is a fortiori not enough.”).
We note that plaintiffs rely primarily on Advisory Opinion. However, as we have previously noted and as Advisory Opinion itself states, it “does not constitute a decision of the Court and is not precedentially binding .... [It only expressed] the views of the justices and not a judicial determination of the question by the court. .. .” Advisory Opinion, supra at 461 n 1. Of course, we might find Advisory Opinion to be persuasive, but only inasmuch as it does not contravene binding authority. With respect to the arguments plaintiffs would draw from Advisory Opinion, we do not find them to be persuasive; in many respects, the opinion ignores or contravenes principles announced in Alan, decided just a year earlier.
For example, Advisory Opinion found “particularly pertinent” practical concerns raised by Justice COOLEY regarding the extensive reenactment and publication requirements that would result from a broad interpretation of Const 1963, art 4, § 25. Id. at 471. However, the Alan Court had considered Justice COOLEY’s concerns as well and, quite directly and cogently, found them to be unfounded in light of technological advances that had occurred since 1865. Alan, supra at 281-286. To the extent that, in this regard or others, Advisory Opinion contravenes Alan, we must, of course, follow Alan.
Further, as defendants point out, the analysis of the majority opinion in Advisory Opinion is consistent with Alan. Most notably, the statute discussed in Advisory Opinion, the no-fault act, was a comprehensive legislative scheme that was determined to be an act “complete within itself” under the Alan analysis. Advisory Opinion, supra at 477. Thus, Advisory Opinion merely applied principles similar to those employed in Alan to determine that a statute different in significant ways from that at issue in Alan was exempt from the requirements of Const 1963, art 4, § 25. As discussed earlier, 1987 PA 154 is more like the statute at issue in Alan than that considered in Advisory Opinion.
We affirm the decisions of the trial courts. The 55 mph speed zone exception of vehicle code section 628(11) was enacted in violation of Const 1963, art 4, § 25 and is without effect. No costs shall be awarded, a public policy question having been presented.
As initially enacted, the section was compiled at MCL 257.628(7).
In one of the two cases, defendant insurance company challenges the jurisdiction of the courts to consider this matter, claiming that the Insurance Commissioner has exclusive or primary jurisdiction. Subject-matter jurisdiction is a question of law that we review de novo. Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523, 527; 695 NW2d 508 (2004). We disagree with the jurisdictional challenge. These are not cases in which plaintiffs have merely framed the issue as constitutional. Compare W A Foote Mem Hosp v Dep’t of Pub Health, 210 Mich App 516, 524; 534 NW2d 206 (1995). Instead, all parties admit that the constitutionality of the statute at issue here is pivotal and will govern the resolution of this case. Further, this Court has held that “an agency that exercises quasi-judicial authority does not possess the power to determine the constitutionality of statutes.” Universal Am-Can Ltd v Attorney General, 197 Mich App 34, 37; 494 NW2d 787 (1992). We have been presented no precedent suggesting that the Insurance Commissioner has such power regarding the constitutionality of the statute at issue here. Thus, plaintiffs’ pursuits of administrative remedies before the commissioner “would have been futile” and “the exhaustion doctrine does not apply.” Id. at 38. In other words, we will not force plaintiffs “to plod through the lengthy administrative process when only the courts have the authority to resolve the controlling constitutional issue.” Bruley Trust v Birmingham, 259 Mich App 619, 627; 675 NW2d 910 (2003), quoting Michigan Supervisors Union OPEIU Local 512 v Dep’t of Civil Service, 209 Mich App 573, 578; 531 NW2d 790 (1995) (citations omitted).
We recognize, as pointed out by plaintiffs, that we are not bound by the opinion of the Attorney General. Further, as discussed below, we are not hound by Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973). There have been no other post-Alan Michigan Supreme Court precedents regarding Const 1963, art 4, § 25, nor have there been any post-1990 precedents of this Court, see MCR 7.215(J)(1).
The earlier precedents considered constitutional provisions other than art 4, § 25 as it currently exists in our 1963 Constitution. However, the constitutional provisions construed in all precedents on which we rely are substantially similar.
This Court used language suggesting that the “amendment by implication” and “act complete in itself” analyses are, perhaps, one and the same. Weber v Orion Twp Bldg Inspector, 149 Mich App 660, 664; 386 NW2d 635 (1986) (“An act complete within itself, even though amending another statute or act by implication, is not one of the evils sought to be prevented by Const 1963, art 4, § 25.”).
Instead, 1987 PA 154 amended MCL 257.320a and added MCL 257.629c, both of which have to do with points recorded by the Secretary of State for the purpose of driver’s license sanctions, see MCL 257.320, otherwise amended MCL 257.628 and MCL 257.629b to revise speed limits in response to changes in federal requirements, and established a highway safety task force, MCL 257.629d and MCL 257.629e. Apart from what was then § 628(7), the act did not address the insurance eligibility points scheme. | [
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Per Curiam.
In this action for declaratory and injunctive relief, defendant Lake Diane Corporation appeals as of right the trial court’s order granting plaintiff Robert E. Whitman’s motion for summary disposition and permanently enjoining defendant from conducting an election, pursuant to MCL 455.206, to expand the territory under its jurisdiction. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant is a nonprofit corporation formed in 1977 under the summer resort owners corporation act, MCL 455.201 et seq., which provides for the creation and operation of a corporate association of property owners to act as a local body of governance for summer resort communities. See MCL 455.204. The act requires property owners who become members of the corporation to execute grants of authority under which the corporation is given “the right to exercise all jurisdiction, conferred by [the] act, over the lands owned by members of [the] corporation . . ..” MCL 455.207. During the first two years following incorporation, “land of no owner that does not voluntarily join [the] corporation can be compelled to come under the jurisdiction of the corporation . ...” MCL 455.206. However, following two years of continuous operation within “the territory to be affected,” the corporation may call for an election to determine whether the “entire territory” comprising the resort community “should become entirely incorporated.” Id.
In September 2003, defendant’s board of trustees resolved to hold such an election for the purpose of expanding the territory of the corporation to include all lakefront property along Lake Diane in southern Hills-dale County. As required by MCL 455.206a, defendant published notice of the election, which was to be held on December 13, 2003, in a newspaper of general circulation within the county for a period of four weeks immediately preceding the election. As also required by the act, defendant provided for the registration of “all freeholders” within the affected area “qualified” under the act to vote on the proposed expansion. See MCL 455.206b and MCL 455.206c. On the eve of the election, however, plaintiff, who owns property along the shore of Lake Diane not currently under defendant’s jurisdiction, brought this action for declaratory and injunctive relief, challenging the constitutionality of the summer resort owners corporation act on a number of grounds.
A temporary restraining order enjoining defendant from conducting the scheduled election was issued by the trial court on December 12, 2003. A preliminary injunction to the same effect was issued in January of the following year. Both parties thereafter sought summary disposition under MCR 2.116(0(10). At the hearing on these motions, the trial court declined to address the constitutional arguments raised by plaintiff, choosing instead to invalidate sua sponte the act’s election procedures on the ground that “the election process contained within the statute is invalid in that it does not specifically detail the requirements ... as to who votes, how they vote, when they vote, and all the other requirements necessary for a valid election ... .” Finding this lack of direction to violate constitutional due process requirements, the trial court enjoined the proposed election until such time as the procedural deficiencies identified by the court are addressed by the Legislature. This appeal followed.
II. ANALYSIS
As a question of law, we review de novo a trial court’s decision on a motion for summary disposition. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). The constitutionality of a statute, which must be determined on the basis of the provisions of the act itself, is also a question of law that we review de novo on appeal. Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163 (2001); Judicial Attorneys Ass’n v Michigan, 459 Mich 291, 304; 586 NW2d 894 (1998). Before undertaking such review, however, we note that the instant dispute is not the first in which the basic constitutionality of the summer resort owners corporation act has been called into question. In Baldwin v North Shore Estates Ass’n, 384 Mich 42; 179 NW2d 398 (1970), our Supreme Court was called upon to address the constitutional propriety of the weekend residency requirement of MCL 455.206c, which purports to identify those persons qualified to vote in an election under MCL 455.206 and requires, among other things, that such persons “have resided week-ends in the territory to be affected for a period 1 month prior to such election . . . .” Noting “the peculiar type of community (resort) envisioned by the act,” the Court found the “harsh requirement of ‘bodily presence’ in the community” for such a period to be violative of equal protection guarantees:
In contrast to the usual local election situation, we deal here with residency away from the permanent domiciles of many potential voters, and we deal with the harsh requirement of “bodily presence” in the community. The facts giving rise to the present controversy make it abundantly clear that in the case of an election held in a resort area, many potential voters — whose interests will be vitally affected by the election results — cannot reasonably be expected to meet the weekend residency requirement of § 6c. As a result, contrary to the object of the legislation, which is to benefit all freeholders in an affected resort area, the residency requirements of § 6c has the practical effect of splitting, for election purposes, the natural class of area freeholders into two differently treated subclasses: those who are more or less permanent residents of the area and those who occasionally use their resort property. [Id. at 53 (emphasis in original).]
The Court further noted that the summer resort owners corporation act, as a whole, “borders on unconstitutionality by reason of its vagueness” — a problem the Court found to stem from the failure of the act to define such basic terms as “summer resort,” “resort community,” and “summer resort owners.” See id. at 49.
Similarly, this Court recognized “the serious problems created by the vague terms contained within this act,” but was not required to decide the constitutional challenge presented there because that case could “fairly he disposed of on other grounds” raised by the parties. Ryan v Ore Lake, 56 Mich App 162, 166, 167; 223 NW2d 637 (1974). Here, no other issue offers an alternative to addressing the constitutionality of the election procedures provided for under the summer resort owners corporation act. On that issue, we hold that the deficiency of guidance with respect to such matters as who is entitled to vote in an election conducted pursuant to MCL 455.206 and when such an election is to take place violates the due process rights of those whose property interests will be affected by such an election.
The constitutional guarantee of due process, in its most fundamental sense, is a guarantee against arbitrary legislation. See Grubaugh v City of St Johns, 384 Mich 165, 170; 180 NW2d 778 (1970), citing 2 Cooley, Constitutional Limitations (8th ed), p 733. Legislation that is unrestricted or uncertain in its application, or otherwise fails to institute safeguards in proceedings that affect those rights protected by due process, i.e., life, liberty, or property, is, therefore, invalid for failure to meet the constitutionally mandated requirement of due process. See Const 1963, art 1, § 17; see also Kampf v Kampf, 237 Mich App 377, 381-382; 603 NW2d 295 (1999).
With respect to the procedures for voting in elections conducted under MCL 455.206, the summer resort owners corporation act requires only that the polls be held open between certain hours and that, during that time, “all registered qualified voters” are permitted to vote upon the proposed expansion. See MCL 455.206d. Despite the unique nature of summer resort corporations and the communities such entities were intended to benefit, see Baldwin, supra at 53, the act contains no restriction regarding the calendar month in which such an election may take place — a lapse in procedural safeguards the detriment of which is apparent from defendant’s having scheduled the election at issue here in December, a month in which it could be expected that a significant number of area freeholders likely would not be present at their resort residences. Id. Moreover, although the timeframes for local public notice of the election, MCL 455.206a, and registration of qualified voters, MCL 455.206b, are themselves sufficiently delineated to satisfy due process concerns, because these timeframes are expressly bound to that immediately preceding the election, the potential harm caused by this lapse significantly affects these provisions as well.
As found by the trial court, the act is also deficient in its identification of those persons qualified to vote in an election under MCL 455.206. With respect to such persons, MCL 455.206c provides:
For the purpose of such election all freeholders who have resided week-ends in the territory to he affected for a period one month prior to such election and who are qualified voters in any voting precinct of the state of Michigan at general elections, are qualified voters for the purpose of this act. [Emphasis added.]
The failure of the Legislature to define the term “freeholder,” like its failure to define those basic terms cited by the Court in Baldwin, supra at 49, renders the election procedure provided for under the act unconstitutionally vague. Indeed, as noted by the trial court, by simply providing that “all freeholders . . . within the territory to be affected” are qualified to vote in an election held under the act, the act fails to address the effect of such circumstances as a single freeholder’s possessory interest in more than one parcel within the territory, or multiple freehold interests in a single parcel. Such uncertainty in the operation of a statute does not satisfy due process. Grubaugh, supra; Kampf, supra.
Because an election pursuant to MCL 455.206 permits the involuntary annexation of property to the jurisdiction of a summer resort corporation, the lack of specificity with respect to such matters as who is entitled to vote on such expansion and when such vote is to take place, violates a property interest protected by the constitutional guarantee of due process. Const 1963, art 1, § 17. Consequently, for the reasons stated above, we find the election provisions contained in MCL 455.206c and 455.206d to be constitutionally invalid as a violation of the due process rights of those whose property interests would be affected by such an election.
Affirmed.
Specifically, plaintiff alleged that the summer resort owners corporation act violates the Michigan Constitution in that it is unconstitutionally vague as a whole, denies equal protection of the law to out-of-state freeholders, allows the taking of private property without just compensation, and violates the local government provisions of Const 1963, art 7, § 27. Because we find the proposed election under MCL 455.206 to have been properly enjoined on the basis of the constitutional deficiencies of the procedures attendant to such elections, we do not address these challenges to the constitutionality of the act, which we find to be either without merit or questionable regarding whether plaintiff has standing to raise the challenges. See Lee v Macomb Bd of Comm’rs, 464 Mich 726, 739; 629 NW2d 900 (2001).
2 As previously noted, the requirement that a freeholder reside weekends in the territory to be affected for a period of one month before the election has been deemed to be an unconstitutional infringement on equal protection guarantees. Baldwin, supra at 53-54. Consequently, although MCL 455.206c maintains that requirement, it is as ineffective as if it had never been enacted. Johnson v White, 261 Mich App 332, 336; 682 NW2d 505 (2004).
In reaching this conclusion, we reject defendant’s invitation to validate the election procedures at issue here by concluding that, where deficient, the summer resort owners corporation act must be read to require those procedures found in the Michigan Election Law, MCL 168.1 et seq. The Legislature has failed to even implicitly provide for the use of such procedures in conjunction with the summer resort owners corporations act, and we decline to write such a provision into the law by judicial fiat. See Ray v Transamerica Ins Co, 10 Mich App 55, 61; 158 NW2d 786 (1968). Moreover, to do so would be to ignore the peculiar nature of the community and election at issue here, and the necessary distinction of such matters from those of general election procedures. Baldwin, supra at 53. | [
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] |
J. H. Gillis, J.
Plaintiff brought suit for injuries allegedly sustained while he was performing his duties aboard the coal-fired steamer, Harris N. Snyder. From a jury verdict in favor of plaintiff for $750,000, defendant appeals.
Plaintiff was employed as a fireman. His duties included cleaning the grates upon which the coal burned. The grates on the Snyder were movable. A 3 to 4 foot metal bar was inserted into the front of the grate mechanism which released a catch, allowing the grates to drop and dump the ash into a pit. The lever would then be pulled back, raising the grates until they locked shut.
As part of the cleaning procedure, it was often necessary to break up clinkers. A clinker is a solid mass of noncombustible material left over after coal has burned. Plaintiff was provided with a number of tools to assist him in breaking up clinkers and cleaning the grates.
Plaintiff testified that on September 4, 1973, he was on the midnight to 4 a.m. watch. He was pulling the lever to close the grates when a clinker jammed them. He then pulled harder and upon doing so experienced a pain in his back.
It is disputed whether plaintiff finished bis watch. In any event, he was subsequently taken ashore and given medical treatment. He has not worked since and it is agreed that he is currently unfit for duty as a seaman.
Defendant raises a number of issues for our consideration. We address, seriatim, those issues meriting discussion.
I. Negligence
Defendant first contends that there was insufficient evidence to submit the issue of negligence to the jury.
Plaintiff brought suit alleging liability under both the Jones Act, 46 USC 688, and on principles of unseaworthiness. The Jones Act provides:
"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railroad employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable.” 46 USC 688.
Under this act, even the slightest negligence on the part of the shipowner suffices for a finding of liability. If such negligence is found, neither contributory negligence nor assumption of risk will defeat a seaman’s claim. Spinks v Chevron Oil Co, 507 F2d 216, 223 (CA 5, 1975). In addition, the burden of proof on the plaintiff to prove proximate cause in actions based upon the Jones Act is very light, even "featherweight”. Davis v Hill Engineering Inc, 549 F2d 314, 329 (CA 5, 1977), Landry v Two R Drilling Co, 511 F2d 138 (CA 5, 1975). The test of a jury case is whether the proofs justify with reason the conclusion that the shipowner’s negligence played any part, even the slightest, in producing the injury for which damages are sought. Varveris v United States Lines Co, 249 F2d 89 (CA 2, 1957).
Plaintiff contended that defendant was negligent in purchasing poor quality coal which was more likely to form clinkers and that plaintiff was not given adequate training in the proper procedure for dealing with such clinkers.
Plaintiff produced sufficient evidence to go to the jury on the issue of negligence. While plaintiff had worked as a fireman for a number of years, he had always worked on ships with stationary grates. During plaintiff’s first watch defendant had the preceding fireman stay over 2 hours and the succeeding fireman come on duty 2 hours early to show plaintiff what to do. However, a jury could reasonably infer from the evidence that plaintiff was not given adequate instruction on the proper procedure for using the dump grate mechanism when numerous clinkers formed. Hence, the issue of negligence was properly put to the jury.
II. Seaworthiness
The issue of seaworthiness is entirely distinct from Jones Act liability. The shipowner has an absolute duty to furnish a seaworthy ship. He is not required to provide an accident-free ship, but must furnish a vessel and appurtenances reasonably fit for their intended use. Mitchell v Trawler Racer, Inc, 362 US 539; 80 S Ct 926; 4 L Ed 2d 941 (1960). Where there is no defective condition of the equipment, appurtenances, crew, cargo, or gear of the ship no liability for unseaworthiness can exist. Earles v Union Barge Line Corp, 486 F2d 1097, 1103 (CA 3, 1973).
In the instant case the unseaworthiness claim appears to be based upon the same allegations as the negligence claim; that the shipowner failed to provide adequate training on the proper method for removal of heavy clinkers.
A classic case of unseaworthiness exists when the vessel is either insufficiently or defectively equipped. In addition, the United States Supreme Court has held that there should be no distinction between men and machines. Hence, failure to provide an adequate crew may also render a vessel unseaworthy. Waldren v Moore-McCormick Lines, Inc, 386 US 724; 87 S Ct 1410; 18 L Ed 2d 482 (1967), Anderson v Great Lakes Dredge & Dock Co, 509 F2d 1119 (CA 2, 1974). An inadequate crew may be due either to insufficient manning or an incompetent crew. Orient Mid-East Lines, Inc v A Shipment of Rice, 496 F2d 1032 (CA 5, 1974).
In Orient, supra, the Court stated that the inexperience of a crew member does not necessarily create an unseaworthy condition. Properly supervised, an inexperienced untrained individual may learn to become competent. Id., at 1040.
We conclude that the allegation that defendant failed to give adequate training to plaintiff in the use of the grate mechanism when dealing with large clinkers and the evidence introduced were sufficient to send the issue of unseaworthiness to the jury. The rationale behind the doctrine of seaworthiness is to protect seamen from dangerous conditions beyond their control. Waldren, supra. We see no reason to distinguish between a shipowner’s failure to provide a seaman with adequate gear or adequate shipmates and failure to provide him with adequate training for the job at hand. The same risks are created by all three.
III. Prejudicial conduct
Defendant contends that the conduct of plaintiffs attorney was so inflammatory and prejudicial that reversal is mandated. Upon an extensive review of the record we conclude that defendant is correct and a new trial is required.
In Wayne County Board of Road Comm’rs v GLS LeasCo, 394 Mich 126; 229 NW2d 797 (1975), the Supreme Court held that the defendant in that case was denied a fair trial due to the actions of the board’s attorney. His conduct consisted of repeatedly belittling LeasCo’s witnesses and lawyer by innuendo and unfounded accusations in an attempt to prejudice the jury.
In Kern v St Luke’s Hospital Ass’n of Saginaw, 404 Mich 339; 273 NW2d 75 (1978), the Court held that plaintiff was deprived of a fair trial when defense counsel injected improper innuendos of a conspiracy between plaintiffs counsel and expert witnesses. The Court there found a "studied purpose to prejudice the jury and divert the jurors’ attention from the merits of the case”. Id., at 354.
While the following quotation is taken from a criminal case involving prosecutorial misconduct, we believe it reflects what our review of the record has disclosed:
" 'It is sometimes said that error "crept” into the trial of a lawsuit. Not so in the case at bar. It marched in like an army, with banners, and trumpets. It was escorted, and emphasized, and aggravated by the attorney for the State.’ ” People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969), quoting from State v Tolson, 248 Iowa 733; 82 NW2d 105 (1957).
From his opening statement and throughout the entire trial, plaintiffs counsel injected irrelevant, prejudicial material in an obvious attempt to divert the jury from the merits of the case. He also engaged in unwarranted attacks upon defendant, its attorneys, and its witnesses. He accused some of the defense witnesses of lying and "concocting” stories without any basis and implied that defense counsel had suborned perjury. Plaintiff’s counsel was also involved in a highly questionable meeting with one of the defense witnesses on the day before trial.
We do not think it is necessary for us to detail every impropriety contained in the record. However, we note the following items to demonstrate the wide range of this prejudicial conduct.
Perhaps the most blatant example of the injection of irrelevant, prejudicial material came during plaintiff’s closing argument when he stated:
"You know, you keep reading in the paper PBB. You know all about that, don’t you? You see that in the paper all the time. You know, if you used a system, and you turned over that feeding situation in the Department of Agriculture to this ship owner, do you know what they would do? They would put that feed on the market, and see whether or not those cows died before they would make a determination whether or not that feed was bad feed, and poisonous, because they are saying, in effect, we don’t know, and there is no way for us to know, how that coal is just by looking at it by our naked eye, and you can’t tell whether or not that PBB is in that feed by the naked eye. You know that too. Now, we are going to have to wait until we consume it so that we can find out whether or not it is any good. Now, what good is that? How are you going to protect the lives of anybody by waiting until it is consumed?”
PBB had absolutely no relevance to any issue in the case. This argument was extremely prejudicial and was obviously designed for the sole purpose of inflaming the jury.
Moreover, plaintiffs attorney did not restrict himself to local matters such as the PBB controversy. He also managed to mention the involvement of attorneys in the Watergate scandal in an attempt to discredit Mr. Parker, one of the defense attorneys.
Plaintiffs counsel also repeatedly belittled the defense witnesses and openly accused one defense witness of fabricating testimony:
"Q Captain, did you concoct this story? Did you and somebody—who put you up to saying this?
"Mr. Busch: Objection, Your Honor.
”Q Who put you up to saying this?
"Mr. Busch: Objection, Your Honor.
”Q I am asking you then, who put you up to coming in here and concocting a story about a ventilator. Now, who put you up to that?
"A Nobody did.”
In Wayne County Board of Road Comm’rs, supra, at 134, the Court stated:
"These comments represent more than the mere reproof of recalcitrant witnesses. They constitute unjustified, direct attacks on the integrity and honesty of LeasCo’s witnesses. There is no evidence that these witnesses testified falsely, withheld information when stating that they did not know the answer to counsel’s questions, or manufactured false evidence.
"Witnesses should not be subjected to personal attacks and unsubstantiated insinuations. Each party is entitled to present its case on the merits, free from remarks of opposing counsel which may prejudice the jury and divert its attention from the real issues.”
Plaintiffs counsel did just what the Court in the above case condemned. He also tried to prejudice the jury by making repeated references to the defendant as a big corporation, interested only in profits and willing to devote "millions for defense, but not one cent for tribute”.
Plaintiffs counsel attempted to prejudice the jury by referring to the fact that defendant was represented by a 130-member Wall Street law firm and implied that they were willing to suborn perjury in order to win the case.
In this same vein, appeals were made to the jury to the effect that the defense attorneys were a bunch of New York lawyers trying to pull the wool over the eyes of midwestern folks. Defense counsel was accused of "trickery” and the defense was characterized as "bogus” and "ludicrous”.
Finally, we note that plaintiffs counsel personally vouched for his client’s credibility:
"You know about his character, his veracity character. You know this fellow. You know, he has been on the stand a long time, but you saw him. I tried to, really—one thing about it—believe me, you know, nobody in this world wants anybody around him, certainly I don’t, who is feining [sic], who is faking or anything like that, and if there was one ounce of fake in that man, I wouldn’t be here representing him. Well, there isn’t.” (Emphasis supplied.)
Such an assertion is completely improper and is prohibited by the Code of Professional Responsibility, DR 7-106(C)(4).
The cumulative effect of the improper arguments and innuendos made by plaintiff’s counsel was so highly prejudicial that we conclude defendant was denied a fair trial. The proper remedy is to remand for a new trial. Wayne County Board of Road Comm’rs, supra, Kern, supra.
TV. Evidence of plaintiff’s physical condition and subsequent medical treatment
Defendant contends the trial court erred in denying the defendant the opportunity to present evidence of plaintiff’s physical condition at the time he left the ship as well as evidence of subsequent alleged malpractice.
Defendant sought to introduce evidence to show that plaintiff suffered only a back strain on board the ship and that any disk pathology was specifically ruled out when plaintiff was examined shortly after the injury occurred. Plaintiff was operated upon in January, 1974, for a disk problem and following this operation developed drop foot. It was defendant’s position that there was no causal connection between plaintiff’s injury on the ship and the disk pathology for which he was operated upon.
The trial court excluded all such evidence relying upon Stahl v Southern Michigan R Co, 211 Mich 350, 355; 178 NW 710 (1920). That case held that where a person receives an injury through the negligent act of another, and the injury is afterward aggravated by an accident not the result of the victim’s own negligence, he may recover for the entire injury sustained, as the law regards the probability of such aggravation as a consequent and material result likely to flow from the original injury. While this is a correct statement of the law, it does not necessarily require the exclusion of the proffered evidence in the instant case. Plaintiff presented evidence that the injury could have produced the disk pathology for which plaintiff was operated upon. Thus the jury could reasonably conclude that any malpractice at that time was merely an aggravation of the initial injury. Under Stahl, supra, defendant would then be liable for plaintiff’s entire injuries.
On the other hand, from the evidence defendant sought to introduce, the jury could conclude that the injury had not caused any disk pathology and that the alleged malpractice was not causally related to the original injury. In other words, it was defendant’s contention that there was a break in the chain of causation.
We conclude the trial judge erred in refusing to admit this evidence. The jury could have been adequately instructed upon the applicable law. See McAuliff v Gabriel, 34 Mich App 344; 191 NW2d 128 (1971).
V. Exclusion of time and wage records
Plaintiff testified that he was injured less than halfway through his four-hour watch and that he was unable to complete the watch. Defendant sought to introduce a time card signed by plaintiff indicating he had worked his regular watch plus an hour of overtime on the day of the alleged injury.
Defendant attempted to introduce the card as an admission and as a business record. The trial court refused to admit it because it was not sure plaintiff had read or could understand what he had signed.
In Durbin v K-K-M Corp, 54 Mich App 38; 220 NW2d 110 (1974), the Court indicated that merely signing a document is insufficient to find an admission. Rather, the circumstances must be examined to determine whether there was adoptive approval of the other’s statement.
"An adoptive admission is the express adoption of another’s statement as one’s own. It is conduct on the part of a party which manifests circumstantially that party’s assent in the truth of a statement made by another. The mere fact that a party had declared that he or another person made the statement is not in and of itself sufficient for a finding of adoption. In order to find adoptive approval of the other’s statement the circumstances surrounding the other’s declaration must be examined. McCormick (2d ed), § 269, p 649. Mrs. Childs stated that she signed the statement only at the request of her husband. The circumstances do not suffice for a finding of an adoptive admission and, moreover, in the normal course of affairs, adoptive admissions refer only to party-opponents.” Id., at 50.
In the instant case the trial court examined the circumstances surrounding plaintiffs signing of the card and determined that there was an insufficient basis for concluding that it was an adoptive admission. We will not disturb the court’s ruling on that point.
However, we conclude the evidence was independently admissible as a business record. MCL 600.2146; MSA 27A.2146 provides in part:
"Any writing or record whether in the form of an entry in a book or otherwise, made as a memorandum of any act, transaction, occurrence or event shall be admisssible in evidence in all trials, hearings and proceedings in any cause or suit in any court, or before any officer, arbitrators, or referees, in proof of said act, transaction, occurrence or event if it was made in the regular course of any business and it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record including lack of personal knowledge by the entrant or maker, may be shown to affect its weight but not its admissibility.”
A record made in the regular course of business showing the hours worked on a particular day would seem to be a prime example of the business entry exception to the hearsay rule. In Siewek v F Joseph Lamb Co, 257 Mich 670; 241 NW 807 (1932), books were held to be admissible to show the amount of time put in by men on a construction job. In that case the entries were taken from the original time cards. In the instant case defendant sought to introduce the time card itself, which would seem to be even more reliable than book entries taken from such a card.
Furthermore, the evidence was highly relevant.. Plaintiff had testified that following his injury he was unable to complete his shift. The time card would suggest that if plaintiff was able to complete his shift and put in overtime any injury was much less severe than plaintiff contended. While the determination of relevance is within the sound discretion of the trial court, People v Miller, 78 Mich App 336; 259 NW2d 877 (1977), in the instant case we find the court abused that discretion.
VI. Adverse inferences
In giving the charge to the jury the trial court indicated that an adverse inference could be drawn from the failure of defendant to record the event of plaintiff’s injury in the engine room log.
There was no factual basis for this instruction. Chief Engineer Crane specifically testified that no such entry would be made. Plaintiff relies upon the testimony of Captain Molnar. Captain Molnar testified that he filled out a report of injury or sickness form. He also stated that the normal practice was to have someone in the engine department fill out this form. However, there was no testimony to indicate that an entry would be made in the engine room log. Giving an instruction unsupported by proof is error. See Embrey v Weissman, 74 Mich App 138; 253 NW2d 687 (1977).
The trial court also instructed the jury that they could draw an adverse inference from defendant’s failure to produce records concerning the coal purchased for use aboard the vessel.
James DeWitt, the manager of defendant’s Cleveland office, testified that he had records of the amount of fuel taken on board the ship and the type of fuel, i.e., stoker coal. There was no record kept of the quality of coal received.
The amount or type of fuel was irrelevant to the determination of liability. Giving an adverse inference instruction when the records were of no relevance was prejudicial to defendant.
Finally, the trial court instructed the jury that they could draw an inference adverse to defendant from the failure to produce film taken by Mr. Whitehead, defendant’s investigator.
Mr. Whitehead testified that he filmed plaintiff walking without crutches, using only a cane, on November 18, 1976, between 5:26 p.m. and 5:41 p.m. The investigator testified that he discarded the film without developing it because of the poor lighting conditions.
When plaintiff testified in rebuttal he admitted using only a cane on that day. The doctor whom plaintiff went to see that day confirmed that plaintiff was using a cane.
In view of the date and time it is completely reasonable that there was insufficient lighting to make developing the film worthwhile. Moreover, since plaintiff admitted using a cane on that day and the doctor confirmed this fact, we find it was error to give the instruction.
VIL Inñation
Defendant’s final argument is that the trial court erred in refusing to charge the jury that it should disregard inflation in making any award for loss of future earnings. We find no error.
In cases such as the instant one the entire proceedings, including the measure of damages, are governed by principles of maritime law. Petition of United States Steel Corp, 436 F2d 1256, 1278 (CA 6, 1970). Accordingly, damages must be reduced to present value, as the trial court instructed in the instant case. Id., at 1280. However, the trial court did not err in refusing to give the proposed instruction. See Bach v Penn Central Transportation Co, 502 F2d 1117, 1122 (CA 6, 1974).
VIII.
Plaintiff cross-appeals raising one issue for our consideration. It is plaintiff’s contention that interest should have been awarded from the date of filing the complaint pursuant to MCL 600.6013; MSA 27A.6013. The trial court rejected this claim and awarded interest from the date of judgment.
The trial court was correct in denying prejudgment interest. The Jones Act incorporates the Federal Employers’ Liability Act. Garrett v Moore-McCormack Co Inc, 317 US 239, 244-245; 63 S Ct 246; 87 L Ed 2d 239 (1942). The allowance of interest on such judgments is a matter of Federal substantive law. Louisiana & A R Co v Pratt, 142 F2d 847 (CA 5, 1944). See also Hanley v Erie R Co, 81 NYS2d 100 (1948).
Defendant’s other claims of error are without merit and do not need discussion.
Reversed and remanded for a new trial. Costs to appellant.
"Mr. Jaques [plaintiffs counsel]: They even did what is very much unorthodox, and we know the circumstances surrounding it. They had a meeting in New York and it is one of those things like a command decision was made, say, okay, may day, may day. What are we going to do? Well, let’s bring Parker in and let’s get Parker to come in and to testify in behalf of the ship owner, well, recognizing that this is so unorthodox that the Bar Association frowns upon it. It shouldn’t be. And he recognizes. Mr. Parker himself said, 'Yes, I am aware of such Canons of Ethics. I am aware of the Bar Association.’ He said I know something about it. He said, T don’t know much about it, but I know something.’ You remember that? He said he knew something about that. A real springer. A real—you know—you know what he was. Now, here is a great outfit. You know, you have to look at motives. You know people—I guess it is a competitive world. No doubt it is, but here is a fairly young fellow, moved up, born in Georgia, moved on up up there in New York and he is with a great big firm, 130 lawyers Cadwalader, Wickersham & Taft. And they are all dead. He said, yes, they are all dead, all those fellows but that law firm, a Wall Street Law Firm, you take a look and you won’t see his name on there, but you will see on this letterhead, you are going to see the big boys, one of whom is John Sullivan, and that’s his boss; the command decision made, okay, let’s bring him in and the idea, let’s get him—
"Mr. Busch: Objection, Your Honor. Beyond the scope of the evidence.
"The Court: Overruled.
"Mr. Jaques: And so, what they do, they bring him in and they bring in this man, they say, now you get up there and you testify. Now, I feel badly because, you know, all lawyers, we are brothers, all lawyers. Now, what he testified to we know can’t be true. There is no way it can be true.”
"When he came back in here, he came back in here as a coached witness, but how in the world do they think they can pull the wool over your eyes when he had already indicated that in no way could this—in no way did he have any information pertaining to some ventilator or blower is beyond me. They’ve got to think that you are not very bright people in order to bring something like that before you. Maybe they think us mid-western folks aren’t bright. I don’t know. I don’t know what they think.
"And they can go back to New York and tell them anything they want to. That New York outfit, those New York attorneys, they can go back and tell them that we are not that green in the midwest and we are not that kind of person where wool can be pulled over our eyes in such a tactical way.” | [
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V. J. Brennan, J.
The defendant, Salvatore Stephen Biondo, was convicted of receiving stolen property (a certain late model automobile) over the value of $100, MCL 750.535; MSA 28.803, by a Recorder’s Court jury on June 23, 1977. Defendant was sentenced to one to five years in prison and appeals by right under GCR 1963, 806.1. Defendant raises three issues, only two of which merit discussion here.
Defendant first contends that there was insufficient evidence on the element of guilty knowledge to sustain his conviction.
We find the defendant’s contention without merit. A review of the arresting officer’s testimony shows that when the key to the car was taken from the defendant and placed in the ignition the switch operated; then when the officer attempted to pull the key out of the ignition the entire ignition switch was pulled out of the housing. Upon further inspection the officer noted that the housing was damaged. Given the fact that the tampered-with ignition switch was readily detectable, People v Salata, 79 Mich App 415, 423; 262 NW2d 844 (1977), we find sufficient evidence from which the jury could infer the element of guilty knowledge. See People v Palmer, 392 Mich 370, 375-376; 220 NW2d 393 (1974).
Defendant next contends that the trial court erred reversibly in finding that due diligence had been exercised by the prosecution in attempting to secure the presence of an indorsed witness. The defendant had challenged the prosecution’s failure to produce and a hearing was held on the issue. However, the defendant failed to move for a new trial based upon the nonproduction as set forth in People v Robinson, 390 Mich 629; 213 NW2d 106 (1973).
A split of authority had developed in this Court on the question of whether a hearing during trial on the prosecution’s failure to produce an indorsed res gestae witness obviates the Robinson motion requirement. Cf., People v Jones, 65 Mich App 619; 237 NW2d 584 (1975), People v Blacksmith, 66 Mich App 216, 220; 238 NW2d 810 (1975), with People v Niswonger, 87 Mich App 57; 273 NW2d 586 (1978), People v Allen, 76 Mich App 585; 257 NW2d 263 (1977).
The Supreme Court in the recent case of People v Willie Pearson, 404 Mich 698, 715; 273 NW2d 856 (1979), specifically addressed this question and held:
"In cases where the trial court has ruled that a missing witness is not a res gestae witness or that the prosecution was sufficiently diligent in its efforts to produce * * * a Robinson hearing would be superfluous and is not required prior to an appeal.”
In the present case since a hearing was held and due diligence was found, the issue is preserved for appeal even absent the post-trial Robinson motion.
Initially it must be pointed out that the witness’s testimony would have been material to the defendant’s claim that he lacked the requisite guilty knowledge. Defendant contended that he borrowed the car from the witness, that the witness had represented that he had just purchased the car and was still using the dealer plate without need for the car registration. The witness’s testimony most certainly would have shed light on the defendant’s contention.
Upon review of the record it is found that the prosecutor on the day of trial knew that the missing indorsed witness was on probation to the court in Broward County, Florida. The prosecutor learned of the witness’s whereabouts the day before the trial through a suggestion by defense counsel to employ a computer readout. A Detroit police officer testified that he attempted to subpoena the witness the week before trial but was told by the witness’s mother and father that the witness went to Florida. The day before trial the officer obtained the witness’s Florida address.
Although the prosecutor made every effort to locate the witness the week before trial, a finding of due diligence is precluded by the fact that the witness’s address was found the day before trial and no further effort was made to produce. In addition this Court in People v Gaffney, 51 Mich App 526, 531; 215 NW2d 587 (1974), lv den 392 Mich 806 (1974), held that "where an indorsed res gestae witness is without this state and the prosecution knows what court of record, if any, in the involved state has jurisdiction to compel attendance” the prosecution’s failure to employ the uniform act to secure attendance of witnesses, MCL 767.91, et seq.; MSA 28.1023(191), et seq., precludes a finding of due diligence. Accordingly, the trial court’s finding of due diligence was erroneous.
We next must determine the proper disposition of the case at bar. The Supreme Court in People v Willie Pearson, supra, p 724, stated:
"A new trial is not automatically warranted simply because the prosecution has failed to exercise due diligence in the production of a missing res gestae witness. The key issue in determining the proper remedy for the defendant when the prosecution has failed to fulfill its responsibilities is whether the defendant is prejudiced.”
The Court then prescribed a post-remand (from the Court of Appeals) hearing to determine whether the failure to exercise due diligence:
"* * * did not adversely affect the defendant’s right to a fair trial (i.e., the defendant is presumed prejudiced until the contrary is established). 404 Mich 698, 725.
The Court set forth what the prosecution must establish in order to overcome the presumption of prejudice as follows:
"If the prosecution can establish that the missing testimony would have been of no assistance to the defendant, that it merely constitutes cumulative evidence, that its absence constitutes harmless error or that the witness could not have been produced at trial, then this burden has been met and the conviction should be affirmed.” (Footnotes omitted.) 404 Mich 698, 725.
In accordance with Pearson we remand the cause to the trial court in order to give the prosecution the opportunity to rebut the presumption of prejudice as per the criteria set forth above. If the prosecution cannot rebut the presumption, the matter shall be remanded for a new trial.
We retain no further jurisdiction. | [
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ON REMAND
Before: SMOLENSKI, P.J., and WHITE and KELLY, JJ.
Smolenski, P.J.
In Lentini v Urbancic, 262 Mich App 552; 686 NW2d 510 (2004) (Lentini I), we affirmed the trial court’s grant of summary disposition for defendants under MCR 2.116(C)(7). However, in lieu of granting leave to appeal, our Supreme Court vacated the decision in Lentini I and remanded the case to this Court for reconsideration in light of Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). Lentini v Urbancic, 472 Mich 885 (2005) (Lentini II). On remand, we again affirm the trial court’s decision to grant summary disposition.
Plaintiff, as the personal representative of his deceased wife’s estate, filed a complaint alleging medical malpractice against defendants on April 17, 2002. Lentini I, supra at 555. The period of limitations is two years for an action charging malpractice. MCL 600.5805(6). Plaintiffs wife passed away on April 11, 1999. Lentini I, supra at 554. Therefore, plaintiff had until April 11, 2001, to file a malpractice claim within the applicable period of limitations. However, under MCL 600.5852,
[i]f a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.
Plaintiffs letters of authority making him the personal representative of his wife’s estate were signed on October 15, 1999, but were certified and mailed to plaintiff on October 19, 1999. Lentini I, supra at 554-555. Consequently, under MCL 600.5852, plaintiff had until either October 15, 2001, or October 19, 2001, to file the malpractice claim, depending on which date the letters of authority were deemed issued.
On October 12, 2001, plaintiff filed a “Notice of Intent to File Suit” against defendants as required by MCL 600.2912b. Lentini I, supra at 554. Plaintiff argued that he had until April 19, 2002, to file his claim because the period under MCL 600.5852 was tolled for 182 days under MCL 600.5856(d) by the filing of notice and because the letters of authority were issued on the date they were certified and mailed. While this Court accepted that MCL 600.5856(d) tolled the period described under MCL 600.5852, we disagreed with plaintiffs contention that the letters of authority were issued on October 19, 1999. We held .that the letters of authority were issued on the date signed. Lentini I, supra at 555. Consequently, we determined that plaintiffs filing on April 17, 2002, was untimely by two days. Id.
In Lentini II, our Supreme Court vacated the decision of this Court in Lentini I and instructed this Court to reconsider our decision in light of Waltz. In Waltz, our Supreme Court held that MCL 600.5856(d) is properly applicable only to statutes of limitation or repose. Waltz, supra at 650. The Court further held that, because MCL 600.5852 is not a statute of limitations, but is a saving provision, MCL 600.5856(d) does not toll the two-year period within which a personal representative may file a claim on behalf of a decedent under MCL 600.5852. Waltz, supra at 650-652. Hence, under Waltz, plaintiffs filing of notice pursuant to MCL 600.2912b after the expiration of the malpractice period of limitations did not toll either the original period of limitations or the period applicable under the saving provision of MCL 600.5856(d). Consequently, plaintiff had to file his claim by either October 15, 2001, or October 19, 2001, depending on the date the letters of authority are deemed issued. Because plaintiff filed the claim long after either of those dates, the claim was untimely.
Affirmed.
This section was amended by 2004 PA 87, effective April 22, 2004, but that amendment does not apply to this case. The provision is now found at MCL 600.5856(c).
We note that the applicable period under MCL 600.5852 is two years. The three-year period mentioned in the statute is a limitation on the two-year saving period and does not establish an independent period within which the personal representative may bring suit. See Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 573 n 16; 703 NW2d 115 (2005).
The decision in Waltz applies retroactively. See Ousley v McLaren, 264 Mich App 486, 493-495; 691 NW2d 817 (2004). | [
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Per Curiam.
Plaintiff appeals as of right a declaratory judgment in which the trial court declared that certain items offered for sale at plaintiffs business constitute “drug paraphernalia” under MCL 333.7451, and were sold or offered for sale in violation of MCL 333.7453(1). We affirm in part and reverse in part.
Plaintiff is the owner and operator of a small business called Concert Connection, which is located in Alpena. Concert Connection offers a variety of items for sale, including hats, T-shirts, wall hangings, black-light hangings, pipes, patches, stickers, posters, and rock and roll memorabilia. In February 2003, Michigan State Police Detective Sergeant Robert Hahn, who was assigned to an undercover narcotics team, investigated plaintiffs business and observed items that he believed to be drug paraphernalia being offered for sale. Thereafter, pursuant to MCL 333.7453(2), the Alpena County Prosecuting Attorney sent plaintiff written notice inL forming him that various products offered for sale at Concert Connection constituted drug paraphernalia under MCL 333.7451, that MCL 333.7453 prohibits the sale of drug paraphernalia, and that he would be arrested if he did not refrain from selling such items. A second letter from the Alpena County Prosecuting Attorney’s office to plaintiff specifically described the items plaintiff was allegedly selling in violation of MCL 333.7453 as all pipes and instruments used for smoking marijuana, including “dugouts,” “one-hitters,” water pipes (commonly referred to as “bongs”), and “bowls,” handheld metallic scales, cocaine kits, “bullets,” “snorters,” and small spoons, with or without a chain and glass vial attached, that are used to snort controlled substances.
Plaintiff filed an action seeking a declaratory judgment regarding the legality of the items he was offering for sale at his store. Specifically, plaintiff sought a ruling regarding whether the items constituted drug paraphernalia under MCL 333.7451 or whether the items were exempt from the definition of “drug paraphernalia” under MCL 333.7457(d) and (e). After conducting a hearing on the matter, the trial court issued a declaratory judgment. The trial court determined that the handheld metallic scales identified by the prosecutor did not constitute drug paraphernalia under MCL 333.7451. However, the trial court determined that certain other items that plaintiff offered for sale at his store, including pipes constructed from glass, stone and metal with a metal screen filter, bongs (with or without an attached rubber face mask), dugouts, and cocaine bullets constituted drug paraphernalia under MCL 333.7451, and were not exempt under MCL 333.7457.
Plaintiffs appeal requires this Court to interpret certain provisions of the controlled substances act, which is article 7 of the Public Health Code, MCL 333.7101 et seq. The interpretation of statutes involves a question of law, which we review de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003). This Court reviews a trial court’s decision to grant or deny declaratory relief for an abuse of discretion. See Allstate Ins Co v Hayes, 442 Mich 56, 74; 499 NW2d 743 (1993).
MCL 333.7453(1) prohibits the sale of drug paraphernalia. A person who is convicted of selling drug paraphernalia under MCL 333.7453 is guilty of a misdemeanor. MCL 333.7455. “Drug paraphernalia” is defined by MCL 333.7451 as
any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance; including, but not limited to, all of the following:
***
(c) A weight scale or balance specifically designed for use in weighing or measuring a controlled substance.
***
(f) An object specifically designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body.
***
(i) A device, commonly known as a cocaine kit, that is specifically designed for use in ingesting, inhaling, or otherwise introducing controlled substances into the human body, and which consists of at least a razor blade and a mirror.
(j) A device, commonly known as a bullet, that is specifically designed to deliver a measured amount of controlled substances to the user.
(k) A device, commonly known as a snorter, that is specifically designed to carry a small amount of controlled substances to the user’s nose.
***
(m) A spoon, with or without a chain attached, that has a small diameter howl and that is specifically designed for use in ingesting, inhaling, or otherwise introducing controlled substances into the human body.
MCL 333.7457 exempts certain items from the prohibition on the sale of drug paraphernalia. The relevant exemption under the facts of this case is contained in MCL 333.7457(d), which provides that “[equipment, a product, or material which may be used in the preparation or smoking of tobacco or smoking herbs other than a controlled substance” is exempt from the definition of “drug paraphernalia.” (Emphasis added.)
Plaintiff argues that the trial court erred in concluding that certain items offered for sale at his store constituted drug paraphernalia under MCL 333.7451 because they were not “specifically designed” for the uses listed in MCL 333.7451. We disagree. We affirm the trial court’s conclusion that the items in question are drug paraphernalia because these items are specifically designed for the uses listed in MCL 333.7451. Historical uses dictate that such items as a bong, a dugout, and a cocaine bullet are “specifically designed” to introduce a controlled substance into the human body. Notwithstanding the fact that the pipes, bongs, and dugouts are “specifically designed” to introduce a controlled substance into the human body, however, we note that such items “may be used in the preparation or smoking of tobacco or smoking herbs other than a controlled substance,” and therefore are exempt from the definition of “drug paraphernalia” under MCL 333.7457(d). The trial court erred when it failed to apply the exemption.
Although the trial court ultimately held that the pipes, bongs, and dugouts that plaintiffs store offered for sale were not exempt from the definition of “drug paraphernalia,” the trial court correctly observed that, under the plain language of MCL 333.7457(d), the pipes, bongs, and dugouts would be exempt because, “due to the similarity in the nature of tobacco and marijuana, it is within the realm of possibility that bongs, the pipes identified by this Court as drug paraphernalia, and dug-outs may be used in the legal preparation or smoking of tobacco or herbs.” However, the trial court concluded that a plain reading of the exemption contained in MCL 333.7457(d) “would render the drug paraphernalia statute meaningless.” Therefore, in an attempt to give effect to all provisions of the controlled substances act, the trial court interpreted “the term ‘may’ to refer to the likelihood that such items will be used to smoke tobacco, rather than the ability of a person to use such items to smoke tobacco.” Using its interpretation of the term “may,” the trial court concluded that there was “ ‘essentially no likelihood whatsoever’ ” that the pipes, bongs, and dugouts were being used to smoke tobacco and therefore ruled that the pipes, bongs, and dugouts were not exempt under MCL 333.7457(d).
We laud the trial court’s creative attempt to make sense of an exemption that, at best, is puzzling, and, at worst, creates a substantial loophole that effectively swallows the definition of “drug paraphernalia” in MCL 333.7451. On the one hand, MCL 333.7451 broadly defines “drug paraphernalia” as “[a]ny equipment, product, [or] material. . . which is specifically designed for use in... introducing into the human body a controlled substance . . . .” On the other hand, the exemption contained in MCL 333.7457(d), which exempts any product or material that “may be used” to smoke tobacco, herbs, or something other than a controlled substance, is itself so broad that it nearly consumes the definition of “drug paraphernalia” contained in MCL 333.7451 and effectively creates a loophole that could result in legalizing the sale of many items that do, in fact, constitute drug paraphernalia.
While we appreciate the difficult task faced by the trial court in attempting to rectify these two impossibly inconsistent statutes, we nevertheless hold that the trial court erred by concluding that the pipes, bongs, and dugouts were not exempt under MCL 333.7457(d). The language of MCL 333.7457(d) plainly exempts “[equipment, a product, or material which may be used in the preparation or smoking of tobacco or smoking herbs other than a controlled substance.” (Emphasis added.) As used in this context, the term “may” is “used to express possibility... .” Random House Webster’s College Dictionary (1997). See also Black’s Law Dictio nary (8th ed) (defining the term “may” as “[t]o be a possibility”). As the trial court correctly observed, because of the similar nature of marijuana or hashish and tobacco or herbs, it is possible to use a pipe, bong, or dugout to smoke tobacco or herbs that are not controlled substances. Indeed, the prosecutor’s only witness testified that the Smoke Stopper, water pipe, and onyx pipe admitted as exhibits could be used for smoking tobacco. Therefore, we hold that under the plain language of MCL 333.7457(d), the pipes, bongs, and dugouts offered for sale at plaintiffs business are exempt from the definition of “drug paraphernalia.”
The trial court’s statements on the record and in its opinion imply that its decision was based, at least in part, on the rule of statutory construction that disfavors a literal interpretation of statutory language when that interpretation would lead to an absurd result. See Jennings v Southwood, 446 Mich 125, 133; 521 NW2d 230 (1994); Houghton Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127, 142-143; 662 NW2d 758 (2003). We concede that the result in this case is absurd. However, the absurd result rule applies only when statutes are ambiguous, Houghton Lake, supra at 143, and in this case, while MCL 333.7451 and MCL 333.7457(d) are not consistent, the language used by the Legislature in both statutes is clear and unambiguous. Moreover, the Legislature, not this Court, created and enacted this absurdity, and we decline to invade the province of the Legislature and engage in “judicial lawmaking” when the Legislature has spoken on this issue. In our view, the language used by the Legislature in both MCL 333.7451 and MCL 333.7457(d) is plain and unambiguous even though the statutes, when read together, are completely incongruent. “[T]he lawmaking power is reposed in the people as reflected in the work of the Legislature, and, absent a constitutional violation, the courts have no legitimacy in overruling or nullifying the people’s representatives.” Robinson v Detroit, 462 Mich 439, 467; 613 NW2d 307 (2000). Rather than usurp the authority of the Legislature to make laws, we leave it to the Legislature to reconsider the language used in MCL 333.7451 and MCL 333.7457(d) and make appropriate amendments to those statutes to eliminate this loophole and give MCL 333.7451 the teeth it needs to enable it to appropriately limit the sale of drug paraphernalia in the. state of Michigan.
In sum, we reverse the trial court’s holding that the pipes, bongs, and dugouts were not exempt from the definition of “drug paraphernalia” under MCL 333.7457(d). In all other respects, we affirm the declaratory judgment issued by the trial court.
Affirmed in part and reversed in part.
A person who receives written notice under MCL 333.7453(2) that he or she is in possession of material that has been determined to be drug paraphernalia under MCL 333.7451 “may commence an action for a declaratory judgment to obtain an adjudication of the legality of the intended sale or offer to sell.” MCL 333.7459(1).
The problem with the statute is that even if each item were designed solely for the purpose of introducing a controlled substance into the human body, it would still be exempt if it “may be used” in the preparation and smoking of tobacco. We note the obvious: any item that is used to smoke marijuana may be used to smoke tobacco. The statute itself does not require that it be used to smoke tobacco, only that it “may be” used to smoke tobacco.
Regarding the cocaine bullet, we observe that MCL 333.7451(j) specifically includes a “bullet” in the definition of “drug paraphernaha,” so we agree with the trial court’s conclusion that the cocaine bullets described by the investigating officer constituted drug paraphernaha.
We agree with the trial court that, regarding these items, the exemption consumes the statute and renders the statute, for the most part, meaningless. | [
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D. C. Riley, P.J.
Defendant was convicted of one count of armed robbery, MCL 750.529; MSA 28.797, and one count of kidnapping, MCL 750.349; MSA 28.581, and two counts of first-degree criminal sexual conduct, MCL 750.520(b); MSA 28.788(2). He was sentenced to serve 10 to 16 years in prison for each count, the sentences to run concurrently.
On appeal, defendant raises two issues, only one of which merits our consideration. He contends that the trial court erred reversibly by failing to instruct the jury properly regarding the asportation element of kidnapping.
In pertinent part, the court instructed the jury as follows:
"One kind of kidnapping requires the prosecutor to prove, beyond a reasonable doubt, that there was a seizure and a movement of a person to another place where the intent in that circumstance is to actually confine a person against his or her will. In that circumstance the prosecutor must prove it was a seizure and some actual movement, some actual asportation. The purpose of that asportation must be the confinement.”
In People v Adams, 389 Mich 222, 236, 238; 205 NW2d 415 (1973), the Court held that to establish asportation sufficient for kidnapping, the movement must not be merely incidental to an underlying lesser crime. Inasmuch as the Court pointed out that this was a fact question for the jury to decide, this holding mandates that the jury be instructed that to find a defendant guilty of kidnapping they must first find, in addition to other elements, that the movement was not "merely incidental”. People v Thomas Ross, 73 Mich App 287, 290; 251 NW2d 268 (1977). The court in the present case failed to comply with this requirement. Failure to give a proper instruction, even in, as here, the absence of a request by defense counsel, requires reversal. People v Curry, 58 Mich 212, 216; 227 NW2d 254 (1975).
The prosecution argues that Adams, supra, applies only to those instances where the prosecutor attempts to escalate a minor crime into a felony, and concludes that since this defendant is charged with four capital offenses, the basis, as they perceive it, for the Adams holding does not exist here. However, our reading of Adams persuades us that the interpretation found in People v Worden, 71 Mich App 507; 248 NW2d 597 (1976), is correct. The thrust of Adams is to prevent one crime from being transformed into two offenses (e.g., kidnapping and rape). "Thus it matters not whether the single offense is a minor misdemeanor, such as simple assault, or a capital felony such as armed robbery”. Worden, supra at 513-514.
. It is argued further that the Adams instruction does not apply to a kidnapping which involves forcible or secret confinement. Therefore, since under the information here the defendant was so charged, and since there was testimony to support the charge, it purportedly follows that the court was under no duty to instruct as to asportation. But here, again, while the Adams Court noted that secret confinement could supply a necessary alternative to asportation it cautioned that this was a fact determination to be made by the jury. Adams, supra at 238-239.
In instructing the jury here, the court set forth two theories under which the defendant could be found guilty: the complainant had been abducted by defendant against her will; or, defendant had secretly or forcibly confined complainant. We cannot glean which theory the jury relied upon to find the defendant guilty, but it is clear that the failure to give an instruction regarding asportation was error.
The general rule in Michigan is that where both erroneous and proper instructions have been given to the jury, the jury is presumed to have followed the erroneous instruction. People v Neumann, 35 Mich App 193, 195-196; 192 NW2d 345 (1971). Therefore, we reverse defendant’s conviction for kidnapping.
Mackenzie, J., concurred. | [
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D. C. Riley, P.J.
Plaintiff appeals by right a March 10, 1978, order of the Ingham County Circuit Court affirming the decision of the Michigan Employment Security Commission Appeal Board that she was ineligible for unemployment benefits during the summer months of 1975.
Plaintiff was employed by the Bay City Schools as a hall monitor, beginning work in February, 1973, and working through succeeding school years, but never during the summer vacation periods.
By letter dated March 25, 1975, plaintiff was informed by the Bay City School District that it did not plan to rehire her for the 1975-1976 school year, and that her employment was terminated as of June 7, 1975. Plaintiff applied for unemployment benefits on June 9, 1975, which benefits were initially denied by the Michigan Employment Security Commission. Following two unsuccessful administrative hearings, plaintiff appealed to the Michigan Employment Security Commission Appeal Board on April 7, 1976, which held that under §§ 27(i)(2) and 27(i)(4) of the Michigan Employment Security Act, MCL 421.27(0; MSA 17.529(0, the summer months of 1975 constituted a "denial period”, during which she was not entitled to unemployment benefits. From the adverse ruling in circuit court, plaintiff brings this appeal.
The standard for judicial review of a decision of the Michigan Employment Security Commission Appeal Board appears in MCL 421.38; MSA 17.540, which states:
"(1) The circuit court * * * may review questions of fact and law on the record made before the referee and the board of review involved in a final order or decision of the board, and may make further orders in respect thereto as justice may require, but the court may reverse an order or decision only if it finds that the order or decision is contrary to law or is not supported by competent, material, and substantial evidence on the whole record.
"(4) An appeal may be had from the decision of the circuit court in the same manner as provided by the laws of this state with respect to appeals from circuit courts.”
The facts in this case are not contested. Therefore, we review the circuit court’s determination that the appeal board had properly applied the law. See MCL 600.308(1); MSA 27A.308(1), GCR 1963, 801.3(1), Lyscas v Chrysler Corp, 76 Mich App 55, 59-60; 255 NW2d 767 (1977), Baker v General Motors Corp, 74 Mich App 237, 244-245 fn 2; 254 NW2d 45 (1977), lv gtd 402 Mich 828 (1977). The statute in effect at the time of plaintiff’s request for benefits reads as follows:
"(i) Benefits based on service in employment * * * shall be payable in the same amount, on the same terms, and subject to the same conditions as compensa tion payable on the basis of other service subjects to this act, except that:
* * *
"(2) Benefits based on service for a school district, a community college district, a school or educational facility owned or operated by the state, or a school operated by a political subdivision of the state shall not be paid to an individual for a week of unemployment within a denial period, as defined in this subsection, if the individual normally would not perform services during that period. A requalification period, however, may be served during a denial period. This subdivision shall not deny benefits to an employee of the Michigan school for the blind, the Michigan school for the deaf, or the state technical institute and rehabilitation center, except for those serving in an instructional, research, professional, or principal administrative capacity. For the purpose of this subdivision service in a professional capacity means service in a position which requires a bachelor’s degree as an educational requirement.
"(3) Notwithstanding subdivision (2), the denial of benefits shall not be applicable to an individual who has been separated from his job under nondisqualifying circumstances and his employment relationship severed more than 7 calendar days before the end of the academic year or term, vacation period, or holiday recess,
"(4) A 'denial period’ for purposes of this subsection is a vacation period or holiday recess occurring during the academic year, a period between 2 successive academic years or terms, or a period of paid sabbatical leave provided for in the individual’s contract.” MCL 421.27(i); MSA 17.529(i).
Plaintiffs initial argument involves a bifurcated allegation. First, she maintains that the March 25, 1975, notice of termination established both job separation and severance of the employment relationship more than seven days before the end of the academic year, thus removing her from the scope of § 27(i), which would otherwise deny her benefits. In addition, she seeks to circumvent application of the "denial period” by claiming the absence of a period "between two successive academic years or terms”. We do not agree with either assertion.
First, the most reasonable interpretation of § 27(i)(3) requires that the mere giving of notice of a future termination date does not serve to presently abrogate the employment relationship. Rather, for the simple reason that plaintiff continued to work, we perceive severance to occur on the last day of employment.
Second, it is equally clear that plaintiff was not an employee of the Bay City Schools during the summer months of 1975, and that the unemployment occurred during "a period between two successive academic years or terms”. Plaintiff contends that because she would not be reemployed in September 1975, there is no succeeding academic year. However, plaintiff’s claim that a subjective standard should be used for determining holidays, vacations, or the period between terms or school years would render § 27(i)(4) meaningless. The existence of an academic year, as envisioned by the Legislature, is to be determined by the objective criteria of the calendar established by the district, and not by the individual’s particular circumstances.
In addition, § 27(i)(1), which applies to employees of higher education institutions, provides that the denial period is inapplicable if the employee does not have a contract for the following academic year. The Legislature could have included this provision in 27(i)(3); however; it chose not to do so.
Finally, the record shows that plaintiff did, in fact, resume her work in September of 1975, thus rendering her claim moot. We therefore conclude that the circuit court properly affirmed the appeal board’s denial of benefits.
Plaintiff also urges us to find § 27(i) violative of the Federal and state equal protection clauses. Initially, we note, and plaintiff concedes, that we are concerned with neither a "fundamental right” nor a "suspect classification” requiring a strict scrutiny standard of appellate review under which the government must demonstrate a "compelling state interest”. See, e.g., Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1972), Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969). We deal here with economic and social welfare legislation, an area in which the Michigan Supreme Court has promulgated two different equal protection standards: the traditional rational basis test, and a more exacting standard whereby a clássification must possess a fair and substantial relation to the object of the legislation. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 669-670; 232 NW2d 636 (1975).
We decline plaintiffs advocation to adopt the more stringent approach. The Court in Manistee specifically noted under what circumstances the fair and substantial relation test might be employed:
"* * * [A]t least where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental, the substantial-relation-to-the-object test should be applied.
"Where a classification scheme creates a discrete exception to a general rule and has been enforced for a sufficiently long period of time that all the rationales likely to be advanced in its support have been developed, a court should fully examine those rationales and determine whether they are sound.” Manistee, supra at 671-672.
We are not persuaded that a discrete exception exists in the present case; school employees are in no way prevented from collecting benefits if they are truly unemployed. Further, the recent alterations to § 27(i) plainly reveal the legislative policies and goals of that portion of the statute to be experimental in nature.
Hence, we conclude that the instant legislation is to be examined by the traditional rational basis standard, under which it comes before us clothed with a presumption of constitutional validity. Manistee, supra at 667. The burden is on the person challenging the classification to show that it does not rest upon any reasonable basis: that it is essentially arbitrary, capricious, and fails to rationally further any legitimate state purpose. Manistee, supra at 668, Foreman v Oakland County Treasurer, 57 Mich App 231, 240; 226 NW2d 67, lv den 394 Mich 815 (1975), Grayson v Board of Accountancy, 27 Mich App 26, 31-32; 183 NW2d 424 (1970), People v Raub, 9 Mich App 114, 120-121; 155 NW2d 878 (1967). The classification will be sustained "if any state of facts reasonably can be conceived that would sustain it * * *”. Cruz v Chevrolet Grey Iron, Division of General Motors Corp, 398 Mich 117, 127; 247 NW2d 764 (1976), quoting Lindsley v Natural Carbonic Gas Co, 220 US 61, 78-79; 31 S Ct 337; 55 L Ed 369 (1911).
The purpose of the Employment Security Act is to safeguard the general welfare through the dispensation of benefits intended to ameliorate the disastrous effects of involuntary unemployment on workers and their families. MCL 421.2; MSA 17.502. It is not designed to increase the compensation of wage earners employed on a fixed, but somewhat irregular, schedule.
Had the Legislature intended that all persons would be eligible for assistance regardless of the reason for their nonworking status, it would have passed a law granting such comprehensive benefits. Instead, it chose to adopt a program denying benefits in certain instances and for certain reasons. The Legislature is not required to choose between addressing every aspect of a problem or not addressing the problem at all. Manistee, supra at 672, Van Slooten v Larson, 86 Mich App 437, 451; 272 NW2d 675 (1978).
"* * * [Consistently with the Equal Protection Clause, a State 'may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind * * *. The legislature may select one phase of one field and apply a remedy there, neglecting the others * * Williams v Lee Optical Co, 348 US 483, 489; 75 S Ct 461; 99 L Ed 563 (1955); Jefferson v Hackney, 406 US 535; 92 S Ct 1724; 32 L Ed 2d 285 (1972). Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point.” Gedulig v Aiello, 417 US 484, 495; 94 S Ct 2485; 41 L Ed 2d 256 (1974).
Thus it becomes incumbent to determine whether § 27(i) is rationally related to the stated purpose of the act. We answer in the affirmative.
Section 27(i) represents a discretionary legislative policy judgment that school districts should not be exposed to liability for payment of unemployment benefits during those periods of the year when their employees traditionally do not work. Such a policy is amply justified by the atypical character of school employment and the limited financial resources of school systems. To require that school districts pay their nonprofessional employees benefits for the periods in question would greatly increase their expenditures for unemployment compensation. The interest in maintaining a fiscally sound social welfare program by restricting the assessments which finance the system to reasonable levels has been upheld in recent years as a legitimate basis for the drawing of classifications resulting in the exclusion of various social services, including unemployment compensation. See Gedulig, supra. In Ohio Bureau of Employment Services v Hodory, 431 US 471, 491, 492-493; 97 S Ct 1898; 52 L Ed 2d 513 (1977), the United States Supreme Court, in upholding on equal protection grounds an Ohio law denying unemployment benefits to workers whose nonworking status was due to certain labor conditions, made the following observations:
"In considering the constitutionality of the statute, therefore, the Court must view its consequences, not only for the recipient of benefits, but also for the contributors to the fund and for the fiscal integrity of the fund.
"The third rationale offered by the State is its interest in protecting the fiscal integrity of its compensation fund. This has been a continuing concern of Congress and the States with regard to unemployment compensation systems. * * * It is clear that protection of the fiscal integrity of the fund is a legitimate concern of the State.”
In the case at bar, the Legislature’s action was not arbitrary, but was rather designed to safeguard the stability of school district unemployment funds. We are unable to conclude that this classification bears no relationship to the ultimate function of the act of protecting the welfare of the people of Michigan.
Nor, as plaintiff additionally contends, does the legislative exemption of state employed nonprofessional school employees in §27(i)(2), from the denial provisions of the act, operate as an impermissible differentiation between persons in the same class. Employees of the enumerated institutions are state civil service workers. As before, distinctions premised upon the greater taxing powers and broader financial resources of the state do not result in a denial of equal protection.
Affirmed.
No costs, construction of a statute being involved.
This section was substantially rewritten in 1977. See 1977 PA 277, § 1; MCL 421.270); MSA 17.529(i).
"(1) Benefits based on service in an instructional, research, or principal administrative capacity in an institution of higher education as defined in section 53(2) shall not be paid to an individual for a week of unemployment which begins during the period between 2 successive academic years, during a similar period between 2 regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual’s contract, if the individual has a contract or contracts to perform services in such a capacity for an institution of higher education for both of the academic years or both of the terms.” MCL 421.27(i)(1); MSA 17.529(i)(1).
With 1977 PA 277, § 1, the Legislature amended the sections of the Employment Security Act under scrutiny in this case. In essence, the amendments provide for the denial of benefits under the same circumstances as before, but only if "there is a reasonable assurance that the individual will perform the service in the period immediately following the vacation or holiday recess”. MCL 421.27(i); MSA 17.529(0. Thus, in the future, plaintiffs situated like plaintiff here would be entitled to receive unemployment benefits from the date they left their employment, where there is no reasonable assurance they would resume employment with the school system in the next academic year. Plaintiff, however, was denied benefits under the provisions of the former act.
US Const, Am XIV, Const 1963, art 1, § 2.
1975 PA 42, § 1, 1977 PA 277, § 1.
See MCL 421.2; MSA 17.502 which contains the Employment Security Act’s declaration of policy and provides that:
"The systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment by the setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own, thus maintaining purchasing power and limiting serious social consequences of relief assistance, is for the public good, and the general welfare of the people of this state.” | [
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Young, J.
We consider in this case the trial court’s decision to suppress defendant’s voluntary confession on the ground that defendant did not “knowingly and intelligently” waive his Miranda rights. We conclude that the trial court applied an erroneous legal standard in assessing the validity of defendant’s Miranda waiver. Moreover, we conclude that the waiver was valid. Therefore, we reverse the trial court’s decision suppressing defendant’s confession.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 1994, defendant flagged down Detroit Police Officers Nevin Hughes and Linda Dickinson, who were on routine patrol in a marked vehicle, and blurted out that he had just confessed to a 911 operator that he had killed his mother, Teriza Daoud. As it turns out, in 1985, the victim’s body had been discovered in a Dumpster in Toledo, Ohio. The victim’s body was “hog-tied” with electrical cord and burned. An autopsy report indicated that the victim died as a result of multiple blunt-force injuries to her head. The victim had also been exposed to some source of carbon monoxide before her death. Ironically, the case had remained unresolved until defendant’s decision to approach the police nine years later.
In response to defendant’s roadside outburst, Officers Hughes and Dickinson pulled their patrol car to the curb, approached defendant and advised him of his Miranda rights. Officer Dickinson testified at defendant’s preliminary examination that defendant proceeded to waive his Miranda rights and tell the officers that he “took a lug wrench and he cut it in half and he hit his mother several times in the head and then he choked her and then he wrapped her up in a blanket, tied her up with some wire and he took her out to a[n] area near a school in Troy.”
The officers drove defendant to the Detroit Police Department’s 9th Precinct station where defendant was advised of his Miranda rights a second time. Defendant again waived those rights and repeated what he had previously told the officers.
In response to defendant’s statement that the murder took place in Troy, Officer Dickinson immediately notified the Troy Police Department. Troy Police Detective Mitch Lenczewski testified at the preliminary examination that he and Sergeant Mark Tuck went down to the Detroit Police Department on May 21 and interviewed defendant. Defendant was advised of and waived his Miranda rights a third time. Defendant then gave a taped confession in which he explained that he repeatedly struck his mother in the head and choked her to get her to stop screaming. After killing her, defendant wrapped his mother’s body in blankets and placed it in the trunk of his uncle’s car. He then drove the car to a nearby school, and parked it there. Defendant returned to his mother’s house, took her car, and drove it to the Oakland Mall in Troy to make it look like she had been shopping there.
After getting a ride from some “guys” at the mall, defendant returned to the school where he had left his uncle’s car. Defendant bought a gasoline container, filled it, and drove to Toledo with the victim’s body in the trunk. There, defendant threw his mother’s body into a Dumpster and set it afire. Defendant then returned to Michigan and, with apparent success, went about concealing his crime. Following the interview with Detective Lenczewski, defendant signed a waiver form and provided a written statement in which he again confessed to his mother’s murder. All defendant’s statements were admitted at the preliminary examination.
After defendant was bound over for trial on June 10, 1994, he filed a notice of intent to raise an insanity defense. Accordingly, the trial court ordered that defendant be examined by the Center for Forensic Psychiatry. Following a September 1994 competency hearing, the trial court determined that defendant was incompetent to stand trial and committed him to the Michigan Department of Mental Health for treatment. Upon defendant’s request, the trial court further ordered that defendant be examined “relating to the issue of competency to understand his constitutional and Miranda rights prior to making a statement to the police . . . .”
Defendant was eventually examined by three experts, Drs. Robert Mogy, Charles Clark, and Thomas Grisso, all of whom submitted reports. Walker hearings were held on September 25, 1996, and February 7, 1997, during which the trial court heard testimony from all three doctors pertaining to the validity of defendant’s confession. The doctors disagreed with respect to defendant’s ability to understand his Miranda rights. Dr. Mogy believed that defendant was delusional in that he believed that God controlled the police and would set him free if he confessed and that this delusion made him unable to appreciate the fact that the police would use his statements against him. In contrast, Dr. Clark testified that there were no clear indications that defendant’s confession was the product of any delusion or that defendant did not understand that the police would use his statement against him.
In light of the contradictory opinions rendered by Drs. Mogy and Clark, Dr. Grisso was hired to perform yet another examination. Dr. Grisso testified that defendant literally understood that the police intended to put him in jail; however, due to his religious “delusions and preoccupations,” defendant was unable to use that information and “relate it to his own situation.”
Relying on the testimony given by Drs. Mogy and Grisso, the trial court suppressed defendant’s statements on the ground that defendant did not make a knowing and intelligent waiver of his Miranda rights. The trial court found that defendant was delusional at the time of his contact with police, in that he “believed that he had no need of any protective rights as God would be releasing him from jail as a reward for confessing to his mother’s murder.” The court reasoned that this delusion “prevented rational comprehension of the specific topic at issue—his right to counsel and his right against self-incrimination.”
The prosecution sought leave to appeal from the Court of Appeals. That Court reversed the trial court’s decision to the extent that it purported to suppress all defendant’s statements. The Court explained that defendant’s initial statements made before he was transported to the police station were not the product of custodial interrogation and thus were outside the scope of Miranda. However, the Court left standing the trial court’s decision suppressing defendant’s later recorded confession.
This Court granted the prosecution’s application for leave to appeal. 461 Mich 873 (1999).
II. STANDARD OF REVIEW
In People v Cheatham, 453 Mich 1, 30; 551 NW2d 355 (1996), this Court set forth the standards for our review of the trial court’s decision in this case:
Although engaging in de novo review of the entire record, see People v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965), this Court will not disturb a trial court’s factual findings regarding a knowing and intelligent waiver of Miranda rights “unless that ruling is found to be clearly erroneous.” [People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983).] Credibility is crucial in determining a defendant’s level of comprehension, and the trial judge is in the best position to make this assessment.
Although we review for clear error the trial court’s factual findings regarding a defendant’s knowing and intelligent waiver of Miranda rights, we agree with the prosecution that the meaning of “knowing and intelligent” is a question of law. We review questions of law de novo. McDougall v Schanz, 461 Mich 15, 24; 597 NW2d 148 (1999).
HI. ADMISSIBILITY OF CONFESSIONS: AN HISTORICAL PERSPECTIVE
The United States Supreme Court originally followed the common-law rule pertaining to the admission of confessions: that a confession was admissible as long as it was freely and voluntarily made. See Hopt v Utah, 110 US 574, 584-585; 4 S Ct 202; 28 L Ed 262 (1884). Then, in Bram v United States, 168 US 532, 542; 18 S Ct 183; 42 L Ed 568 (1897), the Court for the first time found the voluntariness requirement to be grounded in the Fifth Amendment’s command that no person “shall be compelled in any criminal case to be a witness against himself.” However, the voluntariness requirement was limited to cases in federal court. In Twining v New Jersey, 211 US 78, 114; 29 S Ct 14; 53 L Ed 97 (1908), the Court held that “exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution” (emphasis added).
Beginning with Brown v Mississippi, 297 US 278; 56 S Ct 461; 80 L Ed 682 (1936), the Court introduced due process as a basis for excluding involuntary confessions in criminal proceedings occurring in state courts. It was held that fundamental unfairness in violation of due process exists “when a coerced confession is used as a means of obtaining a verdict of guilt.” Lisenba v California, 314 US 219, 236-237; 62 S Ct 280; 86 L Ed 166 (1941). Under the Due Process Clauses of the Fifth and Fourteenth Amendments, the test for admissibility was the same as that under the Fifth Amendment’s compelled self-incrimination provision, requiring “ ‘that the confession is made freely, voluntarily, and without compulsion or inducement of any sort.’ ” Haynes v Washington, 373 US 503, 513; 83 S Ct 1336; 10 L Ed 2d 513 (1963), quoting Wilson v United States, 162 US 613, 623; 16 S Ct 895; 40 L Ed 1090 (1896).
The Court eventually returned its focus to the privilege against self-incrimination. In Malloy v Hogan, 378 US 1, 6; 84 S Ct 1489; 12 L Ed 2d 653 (1964), the Court overruled Twining and held that “the Fifth Amendment’s exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States.” The Court acknowledged that the Brown Court “felt impelled, in light of Twining, to say that its conclusion did not involve the privilege against self-incrimination.” Id. However, the Court reasoned that any distinction “was soon abandoned.” Id. at 6-7. Thus, the Malloy Court concluded that
today the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897, when, in Bram v United States, 168 US 532; 18 S Ct 183; 42 L Ed 568 [(1897)] the Court held that “[i]n criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the constitution of the United States commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” Id., 168 US at 542; 18 S Ct at 187. Under this test, the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was “free and voluntary; that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . .” Id., 168 US at 542-543; 18 S Ct at 186-187; see also Hardy v United States, 186 US 224, 229; 22 S Ct 889, 891; 46 L Ed 1137 [(1902)]; Ziang Sung Wan v United States, 266 US 1, 14; 45 S Ct 1, 3; 69 L Ed 131 [(1924)]; Smith v United States, 348 US 147, 150; 75 S Ct 194, 196; 99 L Ed 192 [(1954)]. In other words the person must not have been compelled to incriminate himself. [Id. at 7.]
IV. MIRANDA v ARIZONA
Against this backdrop, the Court in Miranda addressed what it believed to be the inherent coercion present in all custodial interrogations. Beginning with the premise that, because of the “compulsion inherent in custodial surroundings, no statement obtained from [a] defendant can truly be the product of his free choice,” id. at 458, the Court fashioned a set of “procedural safeguards” in order to “permit a full opportunity to exercise the privilege against self-incrimination”:
To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. [Id. at 467, 478-479.]
The Court further explained that “[t]he defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” Id. at 444.
In subsequent decisions, the Supreme Court elaborated on what is required for an effective waiver of the Miranda rights. In Moran v Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986), the Court explained that “[t]he inquiry has two distinct dimensions”:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
The “totality of the circumstances” approach referred to in Moran requires an inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the suspect’s
age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his [Miranda] rights, and the consequences of waiving those rights. [Fare v Michael C, 442 US 707, 725; 99 S Ct 2560; 61 L Ed 2d 197 (1979); see also Cheatham, supra at 27.]
We read Fare as setting forth an objective standard for determining whether Miranda rights are validly waived. See United States v Yunis, 273 US App DC 290, 302; 859 F2d 853 (1988). While, as explained below, determining whether a defendant provided a knowing and intelligent waiver necessarily involves an inquiry into the suspect’s level of understanding, this can only be done by examining the objective circumstances surrounding the waiver. Finally, the prosecution has the burden of establishing a valid waiver by a preponderance of the evidence. Colorado v Connelly, 479 US 157, 168; 107 S Ct 515; 93 L Ed 2d 473 (1986).
A. VOLUNTARY PRONG OF THE MIRANDA WAIVER
Determining whether a waiver of Miranda rights was voluntary involves the same inquiry as in the due process context. In Connelly, supra at 169-170, the Supreme Court explained that there is “no reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.” Thus, whether a waiver of Miranda rights is voluntary depends on the absence of police coercion. Id. at 170. The Connelly Court explained that “ ‘the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception . . . I” Id., quoting Moran, supra at 421.
In the instant case, there is no question that defendant’s decision to waive his Miranda rights, and, concomitantly, his decision to confess, was completely voluntary. Consequently, as in Cheatham, our task here is to determine whether defendant’s waiver was also “knowing and intelligent.”
B. KNOWING AND INTELLIGENT PRONG OF THE MIRANDA WAIVER
In contrast to the voluntary prong, determining whether a suspect’s waiver was knowing and intelligent requires an inquiry into the suspect’s level of understanding, irrespective of police behavior. See United States v Bradshaw, 290 US App DC 129, 132-134; 935 F2d 295 (1991); Derrick v Peterson, 924 F2d 813, 820-821 (CA 9, 1990). However, as we explained in Cheatham, supra at 28, “[t]o knowingly waive Miranda rights, a suspect need not understand the ramifications and consequences of choosing to waive or exercise the rights that the police have properly explained to him.” See also Colorado v Spring, 479 US 564, 574; 107 S Ct 851; 93 L Ed 2d 954 (1987) (“The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of [Miranda rights]”). Thus, “[l]ack of foresight is insufficient to render an otherwise proper waiver invalid.” Cheatham, supra at 29. Rather,
[t]o establish a valid waiver, the state must present evidence sufficient to demonstrate that the accused understood that he did not have to speak, that he had the right to the presence of counsel, and that the state could use what he said in a later trial against him. [Id.; see also People v Garwood, 205 Mich App 553, 558; 517 NW2d 843 (1994).]
We agree with the plurality in Cheatham that the requirement of a “knowing and intelligent” waiver of Miranda rights essentially forces courts to make “ ‘sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State.’ ” Id. at 21-22 (Boyle, J.), quoting Connelly, supra at 167. In light of the fact that the Fifth Amendment itself protects only against compelled self-incrimination, the requirement of a “knowing and intelligent” waiver of Miranda rights is puzzling. As the Ninth Circuit observed in Derrick, supra at 821;
[T]he Court requires that there be improper state action under the [F]ourteenth [A]mendment before a confession can be suppressed, but requires no such state action in the Miranda context, even though the constitutional provision underlying the Miranda warning—the [F]ifth [A]mendment—is applied to the states through that same [Fourteenth [A]mendment.
Before the Supreme Court’s recent decision in Dickerson v United States, 530 US 428; 120 S Ct 2326; 147 L Ed 2d 405 (2000), this apparent incongruity was easily reconcilable, given that the Supreme Court itself had acknowledged in at least fifteen post-Miranda decisions that the Miranda warnings are not themselves rights protected by the Fifth Amendment, but instead are prophylactic rules designed to protect the Fifth Amendment right against self-incrimination. In Dickerson, however, the Court abruptly changed course, holding that Miranda is a “constitutional decision” announcing a “constitutional rule.”
Although the Supreme Court has now decided that the Miranda rights are constitutionally mandated, the Court has yet to address the apparent inconsistency between the voluntary and knowing and intelligent prongs of the Miranda waiver analysis. Until it does so, our duty is to accept and attempt to apply Miranda and its progeny, including the requirement of a “knowing and intelligent” waiver of the Miranda rights. Like the Derrick court, “we . . . are obligated to bifurcate the Miranda waiver analysis into an inspection of (1) whether the waiver was ‘voluntary’ and (2) whether the waiver was ‘knowing’ and ‘intelligent.’ ” Derrick, supra at 821; see also Cheatham, supra at 26 (Boyle, J.).
V. APPLICATION
Cheatham represents our most recent attempt to apply the knowing and intelligent prong of the Miranda waiver. The trial court, in its opinion suppressing defendant’s confession, interpreted our decision in Cheatham as requiring that a suspect be able to “apply [his Miranda rights] to himself and understand his relationship with the police.” As a result, the trial court reasoned that defendant’s delusional belief that “God would be releasing him from jail as a reward for confessing to his mother’s murder” prevented him from making a knowing and intelligent decision to waive his Miranda rights. We conclude that the trial court erred as a matter of law because it misread Cheatham and, consequently, focused on why defendant was confessing rather than considering whether defendant could in fact understand and waive his Miranda rights.
Our conclusion in this regard is supported not only by the trial court’s written opinion focusing on defendant’s purported delusions, but by the court’s comments during defendant’s Walker hearings. At one point during Dr. Mogy’s testimony, the trial court commented that “[t]he only issue is [defendant’s] motivation to make the statement.” The court even suggested that only someone who was delusional would come forward and admit to a murder after nine years. Although defendant may have believed that he would not go to jail, such a belief has nothing to do with whether defendant was able to understand “ ‘that he need say nothing at all and that he might then consult with a lawyer if he so desired.’ ” Cheatham, supra at 29, quoting United States v Hall, 396 F2d 841, 846 (CA 4, 1968). In this regard, we agree with the following statement by the Supreme Court of Illinois:
To waive rights intelligently and knowingly, one must at least understand basically what those rights encompass and minimally what their waiver will entail. The mental state that is necessary to validly waive Miranda rights involves being cognizant at all times of the State’s intention to use one’s statements to secure a conviction and of the fact that one can stand mute and request a lawyer. [In re WC, 167 Ill 2d 307, 328; 212 Ill Dec 563; 657 NE2d 908 (1995).]
Because the trial court applied the wrong legal standard in determining defendant’s ability to make a knowing and intelligent waiver of his Miranda rights, we reverse the trial court’s decision suppressing defendant’s confession. Viewing the objective circumstances surrounding defendant’s waiver, the waiver was clearly knowing and intelligent. Detective Lenczewski gave undisputed testimony that, while advising defendant of his Miranda rights, he had defendant read along from a department-issued card. Detective Lenczewski further testified that he stopped after each warning, asked defendant if he understood, and continued after defendant stated that he in fact understood. The exchange ended with defendant’s direction to “get on with it.” Such a remark clearly evidences defendant’s awareness of the events that were transpiring. Defendant eventually waived his rights and proceeded to give a detailed confession.
Turning to the opinions proffered by the various expert witnesses, although Dr. Clark admitted that it was possible that defendant was suffering from a delusion that affected his ability to understand his actions, he believed such a notion to be “quite speculative.” Dr. Clark found no objective evidence that defendant was not capable of understanding his Miranda rights. Indeed, Dr. Clark believed that it would be a “mystery” why defendant would tell the police what he did if defendant did not understand to what use the police would put his statements. Dr. Clark placed particular emphasis on a remark defendant made at his arraignment—that the court should “go ahead and send me to jail”—because that statement was made relatively close in time to his confession.
Dr. Grisso testified that, while defendant’s delusion prevented him from appreciating the consequences of his actions, he clearly had a “straight forward understanding ... of what the Miranda warnings are saying.” With regard to defendant’s understanding of the role of the police, Dr. Grisso testified that defendant would “understand that the police intend[ed] to jail him.” In his report submitted to the court, Dr. Grisso explained that defendant knew what the police were supposed to do but, because of his mental illness, “did not believe that [] it would happen.”
As stated, a knowing and intelligent waiver of the Miranda rights does not require that a suspect “understand the ramifications and consequences of choosing to waive or exercise the rights that the police have properly explained to him.” Cheatham, supra at 28. Rather, a very basic understanding is all that is necessary for a valid waiver.
The Supreme Court has made clear that a defendant need not have a wise or shrewd basis for waiving Miranda rights for the waiver to be valid. In Connecticut v Barrett, 479 US 523, 525-526; 107 S Ct 828; 93 L Ed 2d 920 (1987), the Court considered a case in which a defendant orally confessed to a crime, but refused to make a written statement without the pres ence of counsel. In the course of concluding that Miranda did not require suppression of the defendant’s oral statements, the Court stated that “[t]he fact that some might find [the defendant’s] decision [to confess] illogical is irrelevant, for we have never ‘embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness.’ ” Id. at 530 (citation omitted). Similarly, in Spring, supra, the Court considered a case in which the police interrogated the defendant without telling him all the crimes at which the interrogation was aimed. In concluding that this lack of information did not affect the validity of the defendant’s waiver of his Miranda rights, the Court held that “the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature.” Id. at 577.
Thus, it is clear that the United States Supreme Court does not equate a “knowing and intelligent” waiver of Miranda rights with a wise or lawyer-inspired decision to waive those rights. A trial court’s determination of whether a waiver of Miranda rights is “knowing and intelligent” should not involve any determination whether the decision to waive those rights is actually a wise decision in terms of the defendant’s self-interest. Rather, the only inquiry with regard to a “knowing and intelligent” waiver of Miranda rights is, as stated, whether the defendant understood “that he did not have to speak, that he had the right to the presence of counsel, and that the state could use what he said in a later trial against him.” Cheatham, supra at 29.
Here, even Dr. Mogy, who testified at length about defendant’s supposed belief that “God was going to free him,” acknowledged that defendant “did, at some point, seem to be aware that he could go to jail for making these statements.” Dr. Mogy’s basic position was that defendant simply ignored the consequences of confessing because of his delusions, not that defendant could not understand those consequences. Indeed, Dr. Mogy acknowledged that defendant could understand the literal aspects of his Miranda rights.
In its opinion, the trial court expressly found “the testimony and reports of Dr. Mogy and Dr. Grisso to accurately reflect the nature of [defendant's mental state” at the time that defendant waived his Miranda rights. The trial court also noted that “Dr. Grisso testified that while [defendant did have an intellectual understanding of the rights he was read, his delusions prevented him from appreciating those rights as they applied to his own situation” (emphasis added). Finally, the trial court stated that “this case presents a defendant with the intellectual capability of understanding the rights which [were] read to him.” Thus, it is plain that the trial court found that defendant understood his Miranda rights. That should have ended the trial court’s inquiry because a basic understanding is all that is required for a knowing and intelligent waiver of Miranda rights. The trial court erred in suppressing defendant’s confession.
VI. CONCLUSION
For the reasons stated, the trial court erred as a matter of law in concluding that defendant’s claimed delusional belief that God would set him free prevented him from knowingly and intelligently waiving his Miranda rights. Moreover, as in Cheatham, supra at 31, there is no evidence that, “ ‘at the time the warnings were given and during the subsequent questioning, Defendant manifested expressly or by implication from [his] words and actions any lack of comprehension of what was said to [him] or of what was occurring’ ” (citation omitted). Accordingly, we reverse the trial court’s decision suppressing defendant’s confession.
Weaver, C.J., and Taylor, Corrigan, and Markman, JJ., concurred with Young, J.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). The now-familiar Miranda warnings require the police, before a custodial interrogation, to inform a suspect (1) that he has the right to remain silent, (2) that anything he says can and will be used against him in court, (3) that he has a right to the presence of an attorney during any questioning, and (4) that if he cannot afford an attorney one will be appointed for him. Id. at 469-473.
Sergeant Tuck was involved in the earlier investigation of Teriza Daoud’s murder.
The interview was conducted by Detective Lenczewski because defendant remembered Sergeant Tuck from the original investigation and refused to talk to him.
This decision was based on a report prepared by Dr. Jennifer Balay, an examiner for the Center for Forensic Psychiatry. That report indicated that defendant appeared delusional and that while defendant “had a superficial understanding of the fact that he had been arrested and charged with the murder of his mother,” he was “completely unconcerned . . . believing that he would soon be released from jail because it was the Lord’s will to do so.” The report concluded that “defendant’s disturbed mental state has rendered him unable to appreciate the nature and object of the proceedings against him and unable to rationally assist counsel in his own defense.”
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Unpublished order, entered January 11, 1999 (Docket No. 215615).
The Hopt Court explained that a confession should be excluded if it was induced by threats or promises “which, operating upon the fears or hopes of the accused . . . deprive him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law.” Id. at 585.
The Court relied on the Fourteenth Amendment’s Due Process Clause essentially to avoid its holding in Twining.
Const 1963, art 1, § 17 also affords a right to be free from compelled self-incrimination, providing that “[n]o person shall be compelled in any criminal case to be a witness against himself . . . .” We noted in Cheatham, supra at 10, that “[t]he wording of the Michigan Constitution granting protection from compelled self-incrimination is identical to the Fifth Amendment protection.” As in Cheatham, however, there is no need in this case to consider the precise nature of the protection against self-incrimination provided by the Michigan Constitution because the trial court relied exclusively on the Fifth Amendment and defendant makes no argument that art 1, § 17 should be construed differently.
Contrary to the dissent’s assertion, we do not suggest that a suspect’s subjective mental state plays no role in a determination whether there was a knowing and intelligent Miranda waiver. We merely recognize that the only conceivable basis for ascertaining a suspect’s subjective understanding, other than by supernatural means, which we do not possess, is to examine the objective circumstances surrounding Hie waiver.
The dissent questions our reliance on Connelly in setting forth the prosecution’s burden of proof in this case. The dissent suggests that, because Connelly involved only the voluntary prong of the Miranda waiver, its statement of the burden of proof is not applicable in cases involving the question whether a Miranda waiver was knowing and intelligent. However, Connelly expressly stated that “[w]henever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence.” Connelly, supra at 168 (emphasis added). This statement does not strike us as one of limited applicability. The lower federal courts certainly have not hesitated in applying a preponderance of the evidence standard when determining whether a Miranda waiver was knowing and intelligent. See, e.g., United States v Palmer, 203 F3d 55, 60 (CA 1, 2000); United States v Doe, 60 F3d 544, 546 (CA 9, 1995); Wernert v Arn, 819 F2d 613, 616 (CA 6, 1987).
The dissent also suggests that a higher standard is mandated by the Supreme Court’s assorted references to the prosecution’s “heavy burden” in proving a waiver. Perhaps the dissent has overlooked the fact that the Supreme Court in Connelly acknowledged its prior decisions referring to the prosecution’s “heavy burden” and still adopted a preponderance of the evidence standard. Connelly, supra at 167-168.
As a final matter, we note that this Court also applied the preponderance of the evidence standard to the Miranda waiver’s knowing and intelligent prong in Cheatham, supra at 27.
The Court in Spring actually referred to waiver of “the Fifth Amendment privilege.” Id. We assume that the Court misspoke because it is illogical to talk about a waiver of the right against compelled self-incrimination. As Professor Joseph Grano explains, the idea of a waiver of the Fifth Amendment privilege would only make sense if the Fifth Amendment conferred a substantive right of silence. However, the Fifth Amendment confers not a right of silence per se, but a right not to be compelled to answer questions. See Grano, Confessions, Truth, and the Law (Ann Arbor: University of Michigan Press, 1993), pp 141-142. Thus, the Spring Court must have been referring to waiver of the Miranda rights and not the Fifth Amendment privilege.
Cheatham was a majority opinion with the exception of part in, in which Justice Boyle, joined by Chief Justice Bkickley and Justice Riley, discussed what she believed to be an inconsistency between the voluntary and knowing and intelligent prongs of the Miranda waiver analysis.
As the Supreme Court recognized in Connelly, supra at 170, “the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ ” The Connelly Court further emphasized: “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that.” Id.
See, e.g., Davis v United States, 512 US 452, 458; 114 S Ct 2350; 129 L Ed 2d 362 (1994); Withrow v Williams, 507 US 680, 690-692; 113 S Ct 1745; 123 L Ed 2d 407 (1993); McNeil v Wisconsin, 501 US 171, 176; 111 S Ct 2204; 108 L Ed 2d 158 (1990); Duckworth v Eagan, 492 US 195, 203; 109 S Ct 2875; 106 L Ed 2d 166 (1989); Arizona v Roberson, 486 US 675, 681; 108 S Ct 2093; 100 L Ed 2d 704 (1988); Connecticut v Barrett, 479 US 523, 528; 107 S Ct 828; 93 L Ed 2d 920 (1987); Moran, supra at 424-425; Oregon v Elstad, 470 US 298, 305; 105 S Ct 1285; 84 L Ed 2d 222 (1985); New York v Quarles, 467 US 649, 654; 104 S Ct 2626; 81 L Ed 2d 550 (1984); United States v Henry, 447 US 264, 274; 100 S Ct 2183; 65 L Ed 2d 115 (1980); North Carolina v Butler, 441 US 369, 374; 99 S Ct 1755; 60 L Ed 2d 286 (1979); Brown v Illinois, 422 US 590, 600; 95 S Ct 2254; 45 L Ed 2d 416 (1975); Michigan v Tucker, 417 US 433, 444; 94 S Ct 2357; 41 L Ed 2d 182 (1974); Michigan v Payne, 412 US 47, 53; 93 S Ct 1966; 36 L Ed 2d 736 (1973).
In support of its conclusion regarding Miranda’s “constitutional basis,” the Court first observed that it had “consistently applied Miranda’s rule to prosecutions arising in state courts,” which action could only be justified if the Miranda warnings were required by the United States Constitution. Id. at 120 S Ct 2333.
Second, the Court noted that Miranda itself “is replete with statements indicating that the majority thought it was announcing a constitutional rule.” Id. Finally, the Court found support for its conclusion that “Miranda is constitutionally based” in Miranda’s “invitation for legislative action to protect the constitutional right against coerced self-incrimination.” Id. at 120 S Ct 2334.
We reject the notion that confessing to a crime is inherently irrational. One can easily imagine circumstances in which a person would decide to confess for reasons of morality and conscience. Indeed, as Professor Grano has pointed out, there are many situations in which a guilty person with any basic sense of morality would voluntarily come forward:
To take the easiest case, few would dispute that a guilty individual has a moral obligation to confess when his confession is necessary to prevent an innocent person from being convicted for a crime. Similarly, even aside from the possibility of erroneous conviction, a person has a moral obligation to admit that he has falsely accused another, for only by so confessing can the person hope to remove the harm wrongly caused to the other’s good name. [Grano, n 12 supra at 41.]
In sum, there are countless reasons why a “rational” person might decide to confess past criminal activity.
Actually, including Ms irntial contact with Detroit Police Officers Hughes and Dickinson, defendant had been read Ms Miranda rights three times. Each time defendant waived Ms rights and made a statement. Defendant also signed a waiver form and provided a written statement
Dr. Clark explained that “[t]he more contemporaneous the information is you’re looking at, the more [itj goes to the question to what his state of mind was at the time [of the confession].”
We agree with Professor Grano that “Miranda’s justification for recognizing a right to counsel has nothing to do with helping the defendant to make strategically wise decisions.” Grano, n 12 supra at 170.
The dissent maintains that our analysis confuses separate legal and factual issues. To the contrary, we merely hold that the trial court erred as a matter of law in focusing on defendant’s motivation for confessing. Given the trial court’s unique position as factfinder, we might ordinarily remand a ease for reconsideration under these circumstances. However, because the trial court’s own factual findings (as well as the objective circumstances surrounding defendant’s Miranda waiver that the trial court ignored) support our conclusion that defendant’s waiver was knowing and intelligent, there simply is no need for a remand here.
According to the dissent, one of the “primary problems” with our analysis is that we “assume[] that cases involving mentally ill defendants may be easily analogized to cases involving persons with low intelligent quotas.” Post at 654. However, other than this conclusory allegation, the dissent fails to explain exactly what “analogy” our opinion draws between this case and Cheatham. We have never suggested that mental illness is the same as having a low i.q. We merely recognize the obvious: both conditions could conceivably affect a suspect’s ability to provide a knowing and intelligent Miranda waiver. However, our conclusion here is that there is no objective evidence that defendant’s mental illness prevented him from understanding his Miranda rights. | [
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Graves, J.
The plaintiff sued in character of assignee and owner of a claim of Joseph F. Bernbe for $300 on account of services by said Bernbe as a priest in the now diocese of defendant. A verdict in defendant’s favor was ordered by the court. Bernbe was placed in duty as an officiating priest by defendant’s predecessor, Bishop Mrack, and the entire claim in suit arose during that bishop’s time and before the defendant came in. The main facts in the case are undisputed and the only question is concerning their effect, and in my opinion they show distinctly that the relation between Bishop Mrack and the priest was never that of hirer and hired in any sense implying an obligation on the bishop to pay the priest. The bishop was the priest’s superior and according to the established order of things in the economy of the church government, regulating the degrees of subordination and the methods of administration, it was the province of the bishop to designate the place for the priest to exercise his functions, and prescribe under certain limitations the rules and precepts for his guidance and control. But both were common servants of the church, and the service of the priest was not a service for the bishop,nor was the bishop in respect to the employment a principal. In the course of administration the bishop assigned the priest to a theater of duty and gave him certain rules and instructions, and it was manifestly understood on both sides that the bishop was not to be responsible in law for the salary. On the contrary the conclusion from the facts is unavoidable that the council of the congregation, on whom the diocesan regulations cast the duty to provide support for the clergy, were wholly trusted to supply the necessary means to pay the plaintiff’s assignor. It was surely competent for Bernbeto serve in reliance on that resource and run the risk of failure and there is no doubt that he did so. Exactly similar arrangements are taking place every day. Men are constantly going into positions under appointment by superior agents and where no liability for compensation rests on the employing agent and the means of payment, if they come at, all, are to come from another source.
Oases of illustration are infinite. They abound in business operations, and marked instances may be seen in the great missionary enterprises which are carried on. No one supposes the existence of a legal liability on the part of the appointing agency.
This view decides the case and makes it unnecessary to discuss the question whether in any event the present bishop could be held as the successor of Bishop Mrack.
The judgment is affirmed with costs.
The other Justices concurred. | [
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] |
Cooley, J.
This case was once before in this court, and the decision is reported in 40 Mich. 42. The action was trespass on the case for the unlawful seizure and sale of a mow of wheat belonging to the plaintiff. The defendant justified as sheriff under an execution issued on a judgment in favor of one Sebring. After making the levy the deputy of defendant had proceeded to thresh the wheat in disregard of the plaintiff’s remonstrance, and had then removed it to a village several miles off before selling it. This he claimed a right to do in his discretion, but this court held that no such general right existed, and that if the officer claimed that there were special facts which made such a proceeding proper, the burden was upon him to prove them. On a second trial the officer has undertaken to make such proof, and in the opinion of the jury he seems to have succeeded.
If there were any facts in proof which fairly tended to a justification for the threshing, we must accept the conclusion of the jury as final. From the record it seems that such showing as was made came from one Stringham^ who was deputy sheriff of the same county and had an execution on the same judgment four years earlier. His testimony was as follows:
“I was up there [at Stilson’s] and levied on a lot of wheat. I had permission to put it in this granary. He turned out his granary to put it into. He wished me to leave it there until he could replevy. He was going to replevy, he said, immediately. The wheat was in two places. Got it together in the granary. He turned me out the granary and the lock and key to lock it up with. He said I could have it in welcome, and when he' got the replevy, why of course that would be sufficient; that would settle the matter. I locked it up, took the key and went home. That night about 11 o’clock I was notified he was running the wheat off. I lived in Augusta then, about 31-miles from him. I went up there and found that that was the case, and part of it was gone. I went in and took possession of what was left. I think I saw him. He had a number of men at work for him — two teams I think there were ■drawing wheat for him — drawing it off. I don’t remember whether I had any controversy with Stilson himself about the wheat or not. I know I did with some of his men. I think he was in the barn or about the barn there.”
This apparently makes out a somewhat strong case of making away with the property levied upon, but not much is left of it after the cross-examination. “ I knew,” he says, “ there was a chattel mortgage on this same wheat when I made this levy. I presume Stilson told me of the mortgage when I made the levy. I think it was a man by the name of Woodworth who had the mortgage. I think he lived in Calhoun county. That wheat was in two different parcels .a mile apart. I helped move one parcel to the barn where the other was the same day I made the levy. I locked it up in the granary. Stilson made no objection to my taking it and putting it in there. I think he furnished me with the lock. I did not leave the wheat in his possession there. He told me that it would be perfectly safe. I think Stilson gave me the mortgage, and told me Mr. Woodworth wanted me to file it. I don’t remember Mr. Stilson told me that I ■ought to notify Mr. Woodworth — think he did not. I won’t say that he did not — I don’t remember. He said if I did not notify Woodworth he would. I would not say he did not or did. Mr. Woodworth met me there at the barn about the wheat. It was after I had taken one load to Augusta, and about eleven or twelve o’clock that night that he met me. He claimed to own this wheat. When I went back there quite a pile of the wheat had been taken away. .Mr. Woodworth seemed to be interested in the matter of taking it away ; seemed to be giving directions there. I did not know the man who was taking it away. Woodworth forbid my touching it. I think Stilson did not forbid me. Woodworth seemed to be exercising control over the wheat. I was there perhaps two hours at that time. I took away part of the wheat and Woodworth replevied it from me.” “ I can’t swear positively that I spoke to Stilson that night. The conversation was principally with Woodworthl There were several men there. I don’t know of Stilson ever making an effort to move that wheat. Don’t think he ever said he would move a kernel of it. Don’t think he ever said anything on that subject, except that he would replevy, or that Mr. Woodwortli would replevy it. Mr. Stilson did not object to my levying on the wheat, nor to my putting it in tlie barn. I don’t say he said he would replevy it.”
We are not prepared to say that if it had appeared that the defendant in the execution had in one case secretly removed from the custody of the officer threshed wheat which the latter had levied upon, this would have justified another officer several years afterwards in assuming that he would do the same with wheat in the mow, and in thereupon taking the extraordinary step of threshing it before a sale, as the proper and suitable means of precluding a clandestine removal. It would naturally occur to most officers, we think, that the proper means of protecting property levied upon would be to put a keeper in charge; and unless violence was apprehended, this must be deemed a sufficient precaution. But in this case the attempt to show that Stilson removed the wheat levied upon by Stringham failed utterly. The showing to that effect which String-ham seemed to make on his direct examination was wholly refuted on the cross-examination, and nothing was left of it to submit to the jury. The judge should have stricken out the evidence when the plaintiff made a motion to that effect.
An error was also committed in respect to a claim to exemption made by the plaintiff. He was entitled under the statute to hold as exempt provisions for the comfortable subsistence of his family for six months; and the officer insists that he left sufficient wheat for that purpose. But the statute also exempts “ tlie tools, implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things, to enable any person to carry on the profession, trade, occupation, or business in which he is wholly or principally engaged, not exceeding in value two hundred and fifty dollars ” — and the plaintiff claimed a right to show that he had prepared ground for sowing wheat, and sufficient was not left him for seed. Seed is unquestionably necessary to enable one to carry on the business of farming; and his seed wheat may therefore be included by the farmer in making up the $250 which the statute exempts for him as stock in business. The judge should have received the evidence.
The judgment is reversed with costs, and a new trial ordered.
The other Justices concurred. | [
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] |
Graves, J.
Without going into any discussion of the facts it is sufficient to observe that the case made by the proof entitled the complainant in our opinion to a decree.
The decree below will therefore be reversed and one entered granting the divorce prayed for.
The other Justices concurred. | [
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] |
Campbell, J.
Delator seeks a mandamus to vacate an order of respondent restoring an appeal which had been previously dismissed.
The appeal was dismissed December 13,1876, for a failure . by the appellant from the probate of a will to file a declaration on appeal. The order to restore it was made, on a motion entered April 12, 1880.
It has been frequently held that no new issues need be framed in the circuit court in will cases. But nevertheless the dismissal was a final judgment which remanded the pro ceedings to the probate court, and which could not be set aside unless complained of within the proper time. Ve need not inquire whether the circuit court would have the right to act at any time within two years. It certainly could not interfere after the time had expired for removing the order complained of to this- court. No writ of error or certiorari would lie from this court after two years unless in cases specially saved by statute for disability, and no suck case is presented here.
In the present case more than three years had elapsedi before any attempt was made to restore the cause which had been dismissed. This was too late, and the action was illegal.
A mcmdamus must issue as prayed, with costs.
The other Justices concurred. | [
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] |
Cooley, J.
The bill in this case was filed to obtain a divorce from the bonds of matrimony on the ground of the habitual drunkenness of the defendant. The circuit judge was of opinion that the case was not made out, and dismissed the bill.
The ev dence in the record is not such that any court can feel entirely confident what decree ought to be made; but the circuit judge had better opportunities than we have to judge of the relative credibility of witnesses-; and we are not inclined under such circumstances to reverse his decree in a case, of doubt. And we are the less disposed in this case for the reason that the evidence which bears most strongly against defendant is of occurrences which took place several years ago.
The decree will therefore be affirmed, but without costs or other allowances.
The other Justices concurred. | [
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] |
Campbell, J.
Goetchius sues Calkins to recover contribution for his alleged excess of payment on a joint note executed by the two to William Park, on the 2d of February, 1878. The consideration of this note was the release ■and extension of time of a former note which Goetchius and •one Brown had formerly executed to Calkins, on which Goetchius was surety and Brown principal. Calkins was the nominal payee and held it in trust for other parties; and it had been transferred to Park to raise money for their benefit.
We think there is no foundation for any such claim. Goetchius was the debtor of Calkins, and was bound to pay him or his indorsee the whole of the old note, having recourse only to Brown for re-imbursement. Calkins owed him nothing, and there is no consideration whatever which would make it equitable to compel him to assume half of a debt which would have been due to himself in case he and not Goetchius had paid Park. He, in other words, is on the present note as to Goetchius as he was on the old note which he indorsed, not an original co-debtor, but a surety for Goetchius as principal debtor. When Goetchius paid the note he paid no more than as between the two he was bound to pay.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Marston, C. J.
The proceedings in each of these eases are fatally defective in that no notice appears to have been given of the application to, and appointment of commissioners by, the probate court. The necessity of the proceedings showing affirmatively that such notice was given has been decided so often that it does seem as though the law in this respect should be known and observed more generally than it seems to be. The proceedings in each case-must bé quashed and held for naught.
The other Justices concurred. | [
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Campbell, J.
A ma/ndamus is asked to rescind an order -dismissing garnishee proceedings as founded on a defective affidavit. The affidavit does not conform to the amended garnishee law of 1879 inasmuch as it fails to show the nature of the contract of the principal defendants, or to identify it with the cause of action in suit. As we have repeatedly held the defects fatal we need not discuss it.
But it is claimed the garnishee waived the jurisdictional defect by appearing and disclosing. He expressly denied having any property of the principal debtors, and his disclosure showed claims of creditors under an assignment, in- which he had no personal interest, and in which other persons had. The motion to quash was entered before any judgment had been rendered against the principal defendants..
Without considering under what circumstances, if at all,, a waiver will preclude the garnishee from raising such objections, we do not think: it was any abuse of discretion in the circuit court to reheve the garnishee from further responsibility. There seems to have been no difficulty in the-way of making a valid affidavit when the motion was noticed,, and whatever may have been the case on this point, the garnishee should not be deprived of his jurisdictional defence, and be made to bear the annoyance of a litigation in which he has no interest, unless his conduct has been such as to work serious prejudice. In the present case if the principal defendants had not withdrawn their defence the judgment: against them must have been still further delayed, and, as-already stated, the garnishee had made no admissions whatever of liability. He could only have been held upon the-trial of an issue, which was not ripe for trial before judgment, in the principal case.
The mandamus must be denied with costs.
The other Justices concurred. | [
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] |
Marston, C. J.
"We have no doubt whatever but that the agreement of February 22d, 1875, was binding upon these ■defendants. Under this agreement the suit then pending for the foreclosure of the mortgages against this complainant and his property was to proceed, and if on a sale of the premises the price did not exceed a certain sum, these •defendants were to purchase the property, and complainant herein was to have two and a half years from the date of ■such agreement to pay defendants certain sums, and they then were to release to him all their right, title and interest in the mortgaged premises.
The premises were sold, bid off by third parties, and at a price less than the amount due as appeared by the mortgages, but within a few dollars of being sufficient to pay these defendants the amount to which they were entitled under the agreement of February 22d. They afterwards applied to the court and obtained an order upon which an •execution was issued to collect from this complainant the deficiency, the difference between what the mortgaged premises sold for and the amount of the mortgages — upwards of $2000. This complainant had no knowledge of such proceedings subsequent to the sale. "When the foreclosure proceedings were commenced he was properly brought into court by personal service of the subpoena, but did not appear, and a decree was taken pro confesso.
' The bill in this case was filed to prevent thp collection of •such deficiency — and it is here urged among other things that this complainant should have made his application to the court in the other cause, and that an original suit could not be .commenced for such purpose.
These defendants were not parties in the other case, although after the agreement of February 22 it was carried on for their use and benefit, and the agreement of February 22d was not introduced or used in that case; indeed it was a part of the agreement that it should not be, but that in order to carry out the object and purposes of the agreement the suit should be permitted to proceed. These defendants in attempting to collect the deficiency, are attempting to violate this agreement, and their attempt to do so, and the order obtained by them in the foreclosure case, was a direct fraud upon the rights of this complainant, and would not have been permitted by the court in that case had attention been called to the agreement of February 22. The complainant in this case was not obliged to watch the proceedings in that case, as he could have had no reason to anticipate that these defendants, in direct violation of their agreement, would attempt to collect the deficiency, and upon ascertaining the fact he had a right to commence proceedings against them and protect his own rights and interests.
¥e are satisfied that the decree below was none too favorable to the complainant and that it must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
In this case a suit was brought in a justice’s court for trespass on lands, and the defendant Deens was-arrested on a warrant.
Plaintiff declared in trespass for damage to the land, and. defendant, appearing by attorney, put in the general issue with notice that it was his own close and freehold. He made no claim and filed no bond to transfer the cause to the-circuit, and a trial was had and damages were recovered against him.
He then took a special appeal, alleging as special grounds tlie insufficiency of the affidavit on which the warrant issued, .and error in the decision by the justice that the affidavit was in accordance with law. The circuit court of Bay county reversed the judgment on this ground.
Hpon examining the justice’s return as appearing in the record in this court it does not appear that the defendant ever objected before the justice to the sufficiency of the affidavit or to the regularity of his arrest. No motion or objection of any kind, or for any purpose, was made before the magistrate, and the only action he took was in trying the issue raised by the pleadings.
The statute concerning special appeals does not contemplate the review by the circuit court of errors which do not involve some decision by the justice, either express, or implied in the exercise of jurisdiction. Comp. L. § 5432.
We must assume that the justice’s return contains all that occurred before him. If defective a further return should have been required. By going to hearing on it the party signifies that he is content with it. Case v. Frey, 24 Mich. 251.
The general rule is that a party who joins issue and goes to a hearing on the merits, waives objections to the process, unless he distinctly makes them known in some way. While much allowance is made in favor of parties under arrest, and a waiver of objections will not be hastily assumed, yet it would be dangerous and misleading for a party to lie by indefinitely and submit himself without some kind of protest to a trial on the merits, and then rely on an objection ■that lie has a right to waive if he chooses. Moreover the ■affidavit setting up grounds of appeal rests on an alleged •decision of the justice which we must assume on this record was never made. We think the defect in the affidavit was waived by going to trial and judgment, without at any stage of the cause bringing the matter to the attention of the justice. Hart v. Blake 31 Mich. 278; Manhard v. Schott 37 Mich. 234; Gott v. Brigham 41 Mich. 227.
In holding this we do not hold that the consequence would be to maintain any right q£ arrest now or hereafter founded on the affidavit. That is only one means of enforcing the judgment, and depends on matters collateral to the issue on the merits. The affidavit in this case contains no facts whatever and the circuit court was clearly right in so holding. But as already suggested, we do not think this affects the issue on the merits.
The judgment dismissing the case must be reversed with costs, and the cause remanded for trial.
The other Justices concurred.
State of Michigan, County of Bay, ss.
Andrew O. Maxwell being duly sworn deposes and says that he is agent for Robert Maxwell, and makes this affidavit in his behalf. Deponent further says that said Robert Maxwell has a good cause of action as deponent verily believes against James Deens, against whom deponent applies for process of warrant, in behalf of said Robert Maxwell for trespassing on the lands of said Robert Maxwell in Bangor in said county, to an amount not exceeding- one hundred dollars, and that he has full knowledge of the facts here set forth, and further says not.
Andrew C. Maxwell.
Sworn and subscribed before me this 6th day of May, 1880.
Daniel Mangan,
Justice of the Peace. | [
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Marston, C. J.
I am wholly unable to discover any essential difference in the facts, as presented by the record in the present case, and as presented when here before, and reported in 42 Mich. 191, and any extended argument would be but a repetition of what was then Said. This of course , is unnecessary and uncalled for.
Upon the question as to whether the transaction was-intended as a sale or a mere security or mortgage the court clearly and distinctly left that question to the jury, with instructions that if the latter, plaintiff could not recover.
In my opinion there was no error committed, and the-judgment should be affirmed, with costs.
Graves and Cooley, JJ. concurred.
Campbell, J. I concur only on the ground that the case has been heretofore settled by a former decision. | [
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Marston, C. J.
Under the pleadings and facts found by the circuit judge in this case we are of opinion the plaintiff was not entitled to recover. The plaintiff claimed to recover as an assignee for breach of covenants of warranty in a deed of conveyance of lands, although he at no time had any right or interest in the premises conveyed. The conveyance to the plaintiff’s assignor contained the “ usual covenants of warranty,” some of which certainly run with the land, and the grantee therein could not sever her right of action thereunder and assign the same to a third person, she still retaining the premises.
Previous to this assignment the premises had been mortgaged, and the mortgage was still outstanding and might therefore ripen into a title, and should such happen the hqlder thereof would be entitled to the benefit of such covenants as run with the land.
Even if this were insufficient there are still other objections to the plaintiff’s recovery under the facts as found by the circuit judge. In no view of the case was the plaintiff entitled to recover.
The judgment must be reversed and judgment entered in this court for the plaintiff in error with costs of both courts.
The other Justices concurred. | [
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Campbell, J.
The bill in this cause was filed by a number of lot-owners complaining of an assessment for repaving Jefferson avenue in Detroit. Tbe case was heard on bill and answer, except as to some matters admitted by stipulation, and the decree below was in favor of complainants.
Among other objections to the bill was one that the contractors for the paving should have been made defendants. This objection, however, was waived by the stipulation to go at once to a hearing on terms agreed on, and unless the omission is absolutely fatal it need not be noticed. It does not occur to us that this is such an omission as renders the case defective in that sense. It was held in Palmer v. Bieh 12 Mich. 414, that the omission was not such as to prejudice the suit. The practice has been usually to omit them, and under the peculiar system under which these assessments are made, it is very questionable how far the contractors have any rights which must not be worked out as to the lot-owners through city action entirely. There may be some convenience in bringing them in, but we do not think the present case can be held beyond remedy on account of their omission.
It is also insisted on behalf of complainants that there is no authority in the city to repave streets under the charter, and make the expense a burden on the lot-owners. It was held by a majority of the court in Sheley v. Detroit 45 Mich. 431, that such authority might be lawfully granted, and it was there assumed on both sides that there had been an attempt to grant it. By section 38 of chapter 8 of the charter as amended in 1873, (Laws 1873, Act 270,) it was provided that when the council orders a street to be “ graded, or graded and paved, or repaved,” it may contract for the work as therein provided; and this is followed by a series of sections regulating assessments. It is true that no change is made in the language of these subsequent sections, and' that while they refer to paving there is nothing said about repaving. But the introduction of the word “ repaved ” as the only change in 1873, indicates, as we think, a purpose to make the whole range of sections on the subject applicable. It is true that sound policy should hhve placed some check on the power to repave without necessity. But if the other provisions of the charter are faithfully carried out, that abuse will be reasonably restrained. In such matters something must be left to the good faith of the public agencies. "We think the power exists.
There are also some very strong averments of fraud in the bill, as perpetrated by the contractors, and at least winked at by the Board of WBrks, which by the stipulation are waived, so far as they relate to the performance of the contract. So far as they refer to the method of obtaining it, the bill makes no plain averments, and while the method of advertising resorted to is calculated to furnish some facilities to dishonest combination, the record has not been so framed as to charge it, and we presume was not meant to be.
The case, therefore, must depend upon the regularity and formal correctness of the transactions. The history of the business is in brief as follows: Jefferson avenue had already been paved twice at the expense of the lot-owners. On the second day of April, 1880, a number of proprietors and occupants holding land at different points along the line, petitioned the common council of Detroit to have Jefferson avenue repaved nearly its entire length, with cedar blocks in the main traveled part, and gutters and borders of stone. This petition tbe council referred to tbe Board of Public Works, who, on the 21st of May, 1880, made a report recommending the improvement, and stated that the pavement was about worn out and needed continual repairs. They recommended a pavement of cedar blocks in the .center and eight feet of Medina stone on each side of the street.
Thereupon, on the same day, the council divided the work into three sections, and included the lands of complainants in a section between Beaubien street and the railroad bridge, directing a pavement seventy feet wide. Upon receiving a report which the city engineer was directed to prepare and furnish, containing an estimate and statement of the quantity of grading and paving within the district, the Board of Public Works was directed to advertise five days for proposals. It was further provided that the contractors should receive three-fourths of their pay in accordance with the statute allowing bonds to be issued. ' It is not shown how far the board proceeded under these resolutions.
On the 22d of June, 1880, a number of persons petitioned the council to reconsider the resolutions already passed, and to order a pavement of cedar blocks without stone borders or gutters. At this meeting the Board of Public Works, acting without any previous authority or request, sent in a set of specifications for paving with cedar blocks — as they stated— “in accordance with the expressed wish of the property owners on said avenue.” This report came in simultaneously with the new petition.
The council then rescinded the old resolutions, approved ’ these specifications, and adopted a new set of resolutions of the same tenor except as to the material, which was to be cedar blocks.
The Board of Public Works advertised for proposals, referring to plans and specifications on file, and not setting them out in the notice. On the 9th of July the Board reported that proposals had been received and rejected as excessive. The council then ordered the Board to re-advertise for three days. July 16 a report was made of the rejection of new proposals on the same ground, and the Board recommended that the work be abandoned, unless contractors could be found to do it at a reasonable price. The mayor subsequently suggested a further advertisement} and a delay of a year if this should not be successful. The council on July 23d adopted a resolution directing a re-advertisement for five days. The Board thereafter reported "William J. McGonegal as lowest bidder, and recommended that a contract be awarded him, which was done in due course.
The subsequent proceedings alleging frauds and defaults are for the purposes of this hearing waived.
The objections chiefly relied on are the omission of statutory requirements.
The failure to submit the proposed improvement to the Board of Public Works for estimates and recommendations would probably have brought this case within that of Butler v. Detroit 43 Mich. 552, if it had not been for the remarkable series of transactions which, sooner or later, brought about all of the statutory conditions. While it is difficult to understand how some of these steps were taken, yet it does, we think, appear substantially that the Board of Public Works understood and distinctly recommended the precise pavement contracted for, and the council had before it complete specifications. It also appears that before the final advertising the Board had twice laid before the council the bids for all the work as received, with their opinion that they were excessive, and a recommendation of postponement unless better terms could be made. This was certainly definite information as full as could probably have been given in any other way, and the subsequent action of the council was had in as full light as the statute requires. While all this was irregularly done, we are not prepared to say on this record that the mere irregularity should avoid the tax. We are bound to consider somewhat the manner in which these questions are presented, concerning which we shall make further remark presently.
It is also objected that the charter requires the publication of specifications, as well as the other requisites of a notice to bidders. It declares that “ no paving contract” (or other contract specified) shall be made until advertised proposals- and specifications therefor shall have been duly published in at least one daily newspaper published in said city, and for such period as the common council shall prescribe.” The city ordinance, chap. 35, § 5, requires the Board of Public Works to advertise fifteen days in the official paper, unless-otherwise ordered.
The defence claims that the section in the Board of Public Works act, which declares that “ the board shall advertise for proposals to execute the work according to plan and specifications” (§ 18), supersedes the charter. But we do-not think it was the design of this section to repeal the charter and leave the Board to its own discretion. The two-are parts of one scheme, and the ordinance shows this to be-the understanding. In the present case the Board advertised for three days in one instance, and for five in others,, not of its own motion but because the council so directed.
This language is very clear, and we think it is in the same-direction with much State and congressional legislation which requires notices for proposals to furnish bidders full knowledge of what they are to bid upon, without requiring-a personal visit to any office where there may be difficulty, among many bidders, in consulting the one set of documents, conveniently, and where persons under bodily weakness-could not always consult them at'all. It is to be borne in. mind that this section applies to all contracts alike, and in some cases bidders may be numerous.
But it does not follow that such a notice is to contain all the verbiage which is often, and probably was here, set out-in a formal document called specifications. In a paving-contract all the essentials to inform bidders might easily be-contained in a very few lines.
But we meet on this record with a difficulty which interferes with this inquiry. In a suit the consequences of which are serious if an assessment is held bad, the court ought to-have before it all the documents on which the cause depends, and determine from those just what has been done. This- case is not before us on bill and answer in the ordinary way, but as to certain things depends on the stipulation which waives some facts, and establishes others. It is altogether probable that counsel may have given in their pleadings correct deductions from the action of the various bodies involved. But we feel that we may not fully understand the precise action taken, when neither bill nor answer undertakes to recite it at large, or to do more than state what it was in given particulars. We cannot properly accept the opinions of counsel or parties concerning the legal meaning of documents, which if read by ourselves would enable us to form our own conclusions, which might or might not be the same. American Ins. Co. v. Reed 40 Mich. 622. If this case had been at issue on pleadings and proofs, and the documents omitted, no decree could be safely made in a case involving such important interests until they should be produced.
We cannot properly, under these circumstances, express any views as to the probable questions that may arise on reading these documents. But it cannot escape notice that the necessity of the work, the sufficiency in time and manner of the notices, the action of bidders and of the authorities in accepting or rejecting bids, may all become involved in such a way that our present impressions from this record might be modified.
We think no decree should be rendered on this imperfect showing, but that the decree should be reversed, and the cause remanded with liberty to both parties to amend their pleadings if they choose, and for complainants to reply to the answer, and for proofs. Costs will not be given now to either party, but on a final hearing may be determined as shall be just. The record will be remanded accordingly.
The other Justices concurred.
Afterwards, at the June term, 1881, this case came before the Court upon a record not essentially different, and was submitted on briefs by the same - counsel. Submitted June 15. Decided June 22.
Mabston, C. J.
We have examined the record in this case and find nothing upon which a conclusion different from that arrived at when the case was here before can be based.
The decree of the court below must be affirmed with costs.
The other Justices concurred. | [
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] |
Marston, C. J.
Judgment was rendered in favor of the defendant upon facts stipulated to by the attorneys of the respective parties. The facts as thus agreed upon we must treat as a special verdict, and unless the same, unequivocally, show a liability the plaintiffs must fail, as the burden of proof is upon them. In the sixth clause of the stipulated facts, it is said, that two ear loads were number two white wheat and that they were inspected by Mr. Hatch, the inspector, as number one white wheat, through some mistake or negligence on his part.
The liability of the defendant may depend upon a determination of the fact as to whether the inspector made a mistake, or was guilty of negligence. If he in fact inspected the wheat, and was mistaken in. his judgment in supposing and classifying as number one white wheat, what in fact was, or in the opinion of others was not number one but. wheat of an inferior grade, it can hardly be claimed that the defendant could be held liable for the damages resulting therefrom. The defendant’s liability, if liable at all, must depend upon an affirmative finding that Hatch did not simply make a mistake, but that he was guilty of negligence. If he through negligence, did not look at or inspect the wheat in these two cars, a very different case would be presented from one showing a mistake of judgment merely.
Without intimating any, opinion as to the liability of the defendant in either event, we are of opinion that no liability exists upon the case presented, and the judgment will be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
The will of Mrs. Hathaway was admitted to probate before the probate judge, and an appeal was thereupon taken by contestant to the circuit court. The hearing was there conducted before the judge without a jury and the decree below was affirmed. A bill of exceptions was taken and a review is asked on the questions it presents. When the cause came on for hearing no formal issue or issues had been framed, and proponent’s counsel proposed to proceed on the appeal papers. The counsel for contestant objected and moved that the proponent and contestant, under the direction of the court, prepare an issue to be tried. This was overruled. Contestant’s counsel then prayed leave-to demur to the petition presented for probate in the probate court, on the ground that it did not aver the testamentary capacity of the testatrix, nor that,she was of sound mind and memory.
This was refused. One of the attending witnesses was then placed on the stand to testify, and contestant’s counsel objected against the admission of any evidence on the ground that the court had not ordered an issue. The objection was overruled and the witness proceeded to testify, and was asked to explain, the condition, of the testatrix’s mind at tbe time she made the will. This was objected to because the petition for probate contained no allegation respecting testamentary capacity and because there was no issue on .the subject. This objection was also disallowed. The foregoing presents all the points in the bill of exceptions.
The case is disposed of by Allison v. Smith 16 Mich. 405; and Frazer v. Wayne Circuit Judge 39 Mich. 198. The issue or issues were inherent and it was not a necessary expedient to attempt to reduce them into written forms. The inquiry can neither be enlarged nor contracted by pleadings. There is one main issue and only one, and that is whether the paper propounded is or is not a will. There may be more or less minor issues included, but they all belong to the same inquiry and cannot be presented separately.
There was no error, and the order of the circuit court must be affirmed with costs against the contestant, and the result will be certified to both courts.
The other Justices concurred. | [
23,
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] |
Graves, J.
The board removed Mr. Holihan from the office of school director and the circuit court on certiorari reversed the order of removal. This writ of error was then brought against that judgment.
The authority on which the board acted is expressed in the law concerning primary schools as a power “ to remove from office, upon satisfactory proof, after at least five days’ notice to the party implicated, any district officer or school inspector who shall have illegally used or disposed of any of the public moneys intrusted to his charge, or who shall persistently, and without sufficient cause, refuse or neglect to-discharge any one of the duties of his office.” § 136, p. 24,. of School Laws; Comp. L. § 3695, as amended.
The power of the board is confined to these causes. There-was no finding distinctly within the first branch of the provision and it would require some straining to construe the-determination as it appears of record as an adjudication that Mr. Holihan had “illegally used or disposed of any of the-public moneys entrusted to his charge.” But concerning the second ground the finding was explicit. The board determined that he had persistently neglected, and without sufficient cause, to have the seats of the school-house repaired, and the first question relates to the materiality of this finding. Was it his business to attend to such matters? The-statute leaves no doubt. It imposes the duty on the directorio provide and keep in due order and condition the necessary school-house furniture, and provides that his expenses-shall be subsequently audited and paid. The statute does-not intend that the money must be put in his hands as a preliminary to his action. Comp. L. § 3618; School Law § 48.
The board were the exclusive judges of the facts. It was- not within the province of the circuit court and is not within the province of this court to go behind the' findings and decide on the weight of evidence or draw inferences of fact. The circuit court was confined to the law of the case and this court can go no further. If there was evidence before the board for consideration either for, or for and against the-respective constituents of the charge, the result could not lawfully be disturbed on any assumption or belief that the case was misjudged. And there was such evidence. No doubt it was weak, and were the case an open one on the facts it is not unlikely that we should reach a different conclusion. But this consideration cannot avail.
It seems that Mr. ITolihan refused to recognize as valid a contract for teaching which had been made with one Stevenson, and determined not to pay him, and that his refusal to draw his warrant on the assessor to pay Stevenson was made a distinct ground of charge against him. It also appears that one Miss Mahoney was under a contract to teach which was subject to the same objections as were made to the contract with Stevenson, and that Patrick Scullen, one of the members of the township board, was her uncle. It was objected on the part of Mr. Holihan that in consequence of these facts Mr. Scullen was not competent to sit.
There was no legal disqualification. Miss Mahoney was not a party, and the fact that her interests might be consequentially affected by the decision because it might touch upon the validity of a contract of the same nature as one she held, was not sufficient to oust her uncle. The collateral and contingent interest she may have had in the event of the controversy was too remote and uncertain to preclude him from sitting. The Queen v. Manchester, Sheffield & Lincolnshire Rw. Co. L. R. 2 Q. B. 336; Wildes v. Russell L. R. 1 C. P. 122 Matter of Dodge and Stevenson Manufacturing Co. 77 N. Y. 101.
As a eofisequenee of the error in overruling the finding-for removal under the second ground the judgment of reversal must be set aside with costs.
The other Justices concurred. | [
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Cooley, J.
At the beginning of the year 1878 Hezekiah Selleck, a man 82 years of age, was living in the family of James S. Richards the defendant, in Yan Burén county in this State. Mr. Selleck was a man of some education, was prudent even to excess in his expenditures, strictly temperate, and had accumulated a very considerable property. He had never married; a fact which is attributed by some witnesses to a disappointment in his mature manhood, and which probably tended to make him somewhat shy, and to prefer the retirement of a plain country life which he found with defendant. Defendant was his nephew; was not abstemious as his uncle was; had not been a money-making man, and what he possessed was largely due to his uncle’s assistance and gifts. Mr. Selleck had a brother and nephew living in Yermont, and two nieces, one of whom was a sister of defendant, and had been at one time housekeeper for her uncle before he went to live with defendant. There is evidence tending to show that Mr. Selleck was estranged from this last-mentioned niece; and those who attempt to account for the fact attribute it to her being married against his will, though her husband, so far as appears, is a person to whom no good objection could be urged. There is also evidence that he expressed feeling against his brother, by whom he said he had lost money; not a large amount, however, and less than he had lost by defendant. Whether or not he was really estranged from his other relatives as is supposed, it is quite sure that at the time mentioned he was living on confidential relations with the defendant, having very little society, and no society at all of his other relatives except occasional visits from defendant’s sister. Nothing in the evidence indicates that his mind was not clear, or that it was enfeebled otherwise than by the inevitable infirmities that come with great age.'
About this time, however, he became seriously ill with inflammation of the stomach, and early in March was considered in a dangerous condition. On the 18th of that month the attending physician pronounced his case hopeless, and said he was dying of the poison of uric acid. He nevertheless revived after that day, and lived .until the 15th day of the next month. The series of events which have given occasion for this suit took place in the month in which he died. On the third day of that month defendant procured fi’om Mr. Selleck an assignment of a moi’tgage given by one Koshway to secui’e the payment of $240. On the eighth he obtained an assignment of a mortgage given by one Hedges for $4800. On the tenth a mortgage for $1275 given by one Daniel Brosnahan was assigned to him, and also another for $2478.55 given by Thomas, Michael and Timothy Brosnahan. On the same day the three Brosnahans gave to defendant a purchase-money mortgage for $6000 on land conveyed to them by Selleck. On the day Selleck died defendant obtained from him two assignments; one of a mortgage for $430 given by one Downey, and another of a moi'tgage for $2670.32 given by one O’Keefe. These mortgages constituted nearly all of Mr. Selleck’s property so far as it was within the knowledge or obsexwation of his acquaintances, and left belonging to him at his death insufficient means for the payment of his debts.
These assignments being made by Mr. Selleck while on his deatlx-bed, in the absence of’ all his near relatives except the beneficiary himself, were naturally the subject of grave suspicion, and the circumstances justly, as we think, imposed upon the defendant the burden of making some showing of their faix’ness. Dent v. Bennett 4 My. & Cr. 269; Billage v. Southee 9 Hare 534; Tate v. Williamson L. R. 2 Ch. App. 56; Turner v. Collins L. R. 7 Ch. App. 329; Ashwell v. Lomi L. R. 2 P. & D. 477; Seeley v. Price 14 Mich. 541; Wartemberg v. Spiegel 31 Mich. 400; Jacox v. Jacox 40 Mich. 473 ; Ferguson v. Lowery 54 Ala. 510; Highberger v. Stiffler 21 Md. 338; Pierce v. Pierce 71 N. Y. 154; Cowee v. Cornell 75 N. Y. 91; Cadwallader v. West 48 Mo. 483. This he soon had an opportunity of making in the probate coux’t. Mr. Duncombe was appointed administrator on Mr. Selleck’s estate, and caused the defendant to be sum moned into court to answer to a charge of secreting assets.
It is not now pretended that defendant' could stand for a moment on the testimony he then gave. It is evasive and contradictory, and it makes a pretence of having purchased the mortgages, or taken them as security, which is now wholly abandoned. His course on this examination is now excused on the suggestion that he was afraid of being entrapped by counsel, and sought to protect himself by evasions. If the excuse is well founded it is plain that defendant by his baseless pretences under oath increased the burden already resting upon him of making a showing of fair dealing by other evidence.
The administrator filed his bill in equity to reclaim all these mortgages for the estate, charging that they were obtained from the intestate when he was incapable of intelligently transacting business, and by means of fraud and undue influence. The defendant answered, claiming the mortgages as gifts, made by the intestate when he was perfectly capable of understanding what he was about, and in pursuance of a long-cherished design.
Of the long-cherished design there is some evidence. Some of it, however, looks like an arrangement of appearances for some other purpose than a transfer of property. Of this character is the evidence of defendant’s wife that in the winter of 1875-6 Mr. Selleck one morning after finishing breakfast got up from the table, went to a tin box in which he kept his notes and mortgages, took the box and handed it to her husband, saying “ Here, James, I give you all my personal property.” There is a suggestion which some other facts render plausible, that this was done to enable Mr. Selleck to evade taxation on his securities; but however this may be, there is no reason to think that from this time on Mr. Selleck considered himself divested of all personal estate or that defendant supposed he was owner. Some of the evidence is also extremely improbable, and if true shows him to have had a weakness of mind quite inconsistent with the major part of defendant’s testimony. Thus, one woman with whom he had had no intimacy whatever, and who never saw him but four times, testified to having asked him on the second or third occasion what he was going to do with his property, and according to her statement instead of rebuking the impertinent interference, he confidingly intrusted to her all his intentions. A hired man testifies to similar confidences, one of which was while Mr. Selleck was on his death-bed. He is then said to have told defendant’s wife in presence of the witness, that her husband should have his property when he was done with it, though this, as near as we can gather from the uncertain and confused testimony, must have been after Mr. Selleck had already passed over nearly everything. Such evidence cam give little support to a doubtful or suspicious case.
The vital question, however, is not what the intestate had contemplated or intended, but whether his intentions were earned into effect. To accomplish this an intelligent will directing or assenting to the act done was essential. To show such a will the magistrate who drew and took the acknowledgment of the papers was sworn. His evidence shows clearly that defendant was the principal actor in procuring the assignments to be made, but it also shows that the magistrate believed the intestate knew at the time what he was doing. But if the magistrate suspected no wrong— and apparently this was the fact — he might easily have supposed he saw evidences of intelligence which were only apparent, not real. It is surprising that it did not occur to him as strange that he was being sent for. from day to day to make successive transfers of property for a dying man, and that he was not led by the circumstances to make careful investigation into the real state of the case when defendant was not present. . This precaution, however, was wholly neglected, and the magistrate’s testimony is for that reason not as satisfactory as it would otherwise have been. That he took things for granted is evident from the written memorandum which he afterwards made of the facts, in which he says that the testator “ apparently had been reading, as a newspaper lay on the bed beside him.” On the whole we can only say of the evidence it tends to show that Selleck knew what he was doing when the assignments were made, but there is quite as much that opposes the proposition as that favors it; and there is evidence, even in the testimony of defendant’s witnesses which raises serious doubts of Mr. Selleek having been a conscious actor on some occasions. This may be said of Mrs. Keith’s evidence of what she observed on the third of April, on which occasion she was told by defendant’s wife that they wanted nobody to disturb Mr. Selleek at all, because they wanted to save his strength so that he could sign some papers. And the case is not without circumstances which suggest that actual deception was practiced when the old man was too feeble to detect it.
The suspicious character of the transaction is not relieved by any facts occurring afterwards. Defendant did not inform the Yermont relatives of his uncle’s death, and was angry when he found, a month or so afterwards, that his sister had written to them. It is possible he speaks the truth when he says Mr. Selleek did not want him to let them know, because of the feeling he had against his brother; but as Mr. Selleek is shown by the defence to have been a devout Christian, and his last days are represented as having been passed in Scripture reading and contemplation, this statement cannot be readily accepted, and if actually made is no excuse for defendant’s neglect.
But it is not important to enter now upon any analysis of the evidence, or any full presentation of the reasons which bring us to the conclusion that the defendant has not made out his defence. The record is exceedingly voluminous, and the evidence has been very carefully sifted and ably presented on both sides, and our unhesitating conclusion is that the decree of the chancery court is substantially correct. In some unimportant particulars it have been differently expressed, but in all essentials it is right as it stands. It will therefore be affirmed with costs.
Marston, C. J. and Graves J. concurred. | [
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Marston, C. J.
The following statement of facts taken from the briefs of counsel for the defendants is sufficiently full and accurate for a definite understanding and discussion of the legal questions raised.
The action was commenced by the plaintiff as administrator of the estate of John Kelley, deceased, to recover damages on account of his death caused by a collision between the steamer “Garland,” of which the defendant Horn was owner, and the steam-yacht “Mamie,” owned by the other defendants, on the Detroit river, July22d, 1880. The deck- ration alleged in substance that the Garland was going down the river upon a pleasure excursion, and the Mamie was coming up, returning from a pleasure excursion, and that Kelley was a passenger on the Mamie; that by failure of the master of the Garland to keep a proper lookout, and by his failure to give proper signals at the proper time upon the approach of said Mamie, as required by Rule 3 for the government of pilots, and by reason of the failure of the master of the Mamie to give the proper signals to indicate upon which side she would pass, until the vessels had approached so near that a collision was inevitable, and by reason of the failure of the owner and master of the Mamie to keep a proper lookout upon said Mamie, said vessels collided, and said Mamie sank, causing the death by drowning of said Kelley.
The defendant Horn and the other defendants filed separate pleas-of the general issue. The owners of the Mamie also filed a plea in abatement, alleging that proceedings had been commenced and were then pending in the district court of the Hnited States by them as owners of the Mamie for the purpose of taking advantage of the statute of the Hnited States limiting the liability of vessel-owners in certain cases. And special notice of such proceedings was also given with the plea of the general issue.
A trial was had upon this plea, and a verdict, by direction of the court, rendered for the plaintiff thereon, and the trial thereupon proceeded upon the pleas of the general issue, and a verdict was rendered in favor of the defendants. The case comes here on writ of error, and the points relied upon by the defendants will be considered in order.
The position taken by the defendant Horn was, that the plaintiff’s intestate was a passenger on the Mamie at the time of the alleged collision, and the Mamie having contributed to the collision, plaintiff’s intestate must, in law, be held to have been so identified with those in charge of the yacht that he could not have recovered if he had survived, for an injury suffered by him occasioned by such collision, and that under the terms of the chartering or hiring of the yacht he could not have recovered for an injury so received.
It appeared that Bev. A. F. Bleyenberg had chartered the steam-yacht Mamie to carry a party of altar boys and others, twenty-one persons in all, and fourteen of them from eleven to fifteen years of age, from Detroit to Monroe and back, for which he was to pay twenty dollars, and that the yacht was in charge of the master and engineer thereof placed there by the owners. At the time of chartering the yacht it was stated that there would be about twenty persons to go on the trip, but no limit was placed upon the number, or as to the particular route to be taken, in going to and returning from Monroe.
It has not been and could not be claimed that young Kelley had any authority or control whatever over the master or engineer of the yacht, or that he could have changed or directed the movements of the yacht in even the slightest degree. And while Father Bleyenberg, undoubtedly, we may assume, could and did have charge and control of the yacht, as to the time of starting, the number of passengers and such like, yet as to the due and proper management of the vessel, the steam she should carry, the speed at which she should be run, the course she should take within certain limits, the rules she should observe in meeting and passing other vessels, the lights she should carry, in a word the laws and rules applicable to such craft while navigating the rivers and lakes, were matters over which he could not rightfully be permitted to have any control or direction whatever. These were matters which the master of the vessel could not legitimately •turn over to the guidance or direction of any person who may have chartered the boat for a trip to and from a certain point. Had directions been given the master to run the yacht ashore, or upon a rock,-or to run down upon and destroy a row-boat, or to not give or answer the necessary signals when approaching another vessel, or to not carry proper lights, clearly the master would have been under no -obligations to obey such orders, and neither he nor the owners of the vessel could have justified such a departure from duty by setting up the authority or directions of Father Bleyenberg therefor. In this case it was the legal duty of the yacht to carry proper lights at night and to give and answer certain signals in due and proper time when approaching another vessel, and what the law had thus directed to be done could not be varied, changed or controlled by any person who may have chartered the vessel for the occasion. And where a person can rightfully have no voice or control,, he cannot be held so identified with those in charge as to be considered a party to their negligence. It seems to me that any other rule would but point out the way to owners of vessels in which they could violate all rules and regulations' adopted to insure the safety of passengers without incurring any liability to them therefor. The reason for holding a person riding in a private conveyance identified with the driver thereof, and therefore affected by the negligence of the latter, cannot fairly or justly be held applicable in cases like the present. In the case of a private conveyance the driver is under the control and directions of the passenger, and if not, the latter may well decline to entrust his safety farther in such conveyance. "When, however, a person enters a public conveyance, and certainly a railroad train or a steamboat, he has no such control over the movements of either, and whether he may have chartered such conveyance for a special purpose or not, yet for a faithful observance of the rules of law enacted for the running or navigation thereof, he cannot be held responsible, in a case like the present, where the master is not his servant and is not subject to his directions or authority.
The authorities cited by counsel for plaintiff in error and which decline to follow Thorogood v. Bryan, 8 C. B. 115, should be followed in the present case. The charterer in this case did not appoint the officers of the boat, but was himself, and those who accompanied him, under and subject to their power in the navigation of the vessel, and if they, thus controlling the movements of the Mamie while running, and representing the owners thereof, were guilty of negligence in the performance of their duties, those on board have a remedy for injuries suffered in consequence-thereof. See also Covington T. Co. v. Kelly 11 Am. Rep. 21.
It was next insisted that there was no joint liability on the part of the defendants. This question is not free from embarrassment, and upon a trial the danger is that each-defendant is interested in endeavoring to throw all the blame upon the other, and perhaps attempt to prove acts of negligence not set forth in the declaration. In opposition to this it may be said that negligence caused a collision by which plaintiff’s intestate was killed and that a remedy is-given by statute to recover damages therefor; that if separate actions are brought different juries may acquit all the defendants, and thus the plaintiff be defeated, although his right to recover be unquestioned. Where, therefore, such embarrassments are likely to arise upon the trial, and bearing in mind that the plaintiff is without fault and is entitled to recover — at least we must so consider in the discussion of this question — is not the plaintiff who has thus suffered the-wrong entitled to a remedy, and that the difficulties and dangers are to be thrown upon those presumably in the wrong rather than upon him who was not in fault ? If in either view injustice is likely to be done, should not the defendants assume or be charged with the risk ? Is there, however, likely to be any injustice done in holding them jointly liable ? I think not. The facts are likely to be fully brought out on such a trial; neither will be interested in keeping-back anything tending to show that it was the other alone-that was in fault, and we cannot assume that any wilfully false evidence will be given in the case. The facts are-quite likely, therefore, to be fully presented to the jury,, who can place the responsibility where it rightfully belongs, either by holding both liable, or holding one party liable and acquitting the other.
An act wrongfully done by the joint agency or co-operation of several persons will render them liable jointly or severally. The injury done in this case resulted from a collision caused by the contemporaneous act of two separate wrong-doers, who, though not acting in concert, yet by their •simultaneous wrongful acts put in motion tbe agencies which, together caused a single injury; and for this the injured party could receive but a single compensation. “It is the fact that they all united in the wrongful act, or set on foot or put in motion the agency by which it was committed, that renders them jointly liable to the person injured. Whether the act was done by the procurement of one person or of many, and, if by many, whether they acted with a common purpose and design in which they all shared, or from separate and distinct motives, and without any knowledge of the intentions of each other, the nature of the injury is not in any degree changed, or the damages increased which the party injured has a right to recover.” Stone v. Dickinson 5 Allen 31.
In Colegrove v. New York etc. R. R. 20 N. Y. 492, it was held that a passenger injured by a collision resulting from the concurrent negligence of two railroad corporations could maintain a joint action against both. Cooper v. E. T. Co. 75 N. Y. 116, was a case where death had resulted from a collision by two vessels, and an action against both jointly was maintained. In my opinion this action may be maintained against the owners of both vessels. Hillman v. Newington 51 Cal.-: 23 Alb. Law J. 294.
It was next insisted that the case made by the plaintiff showed no fault or negligence on the part of the owners of the Mamie that would justify a verdict against them. The rule must now be considered as settled in this State that where the evidence tends to make out a case for the plaintiff, the force and effect thereof must be submitted to the jury, and that this court will not attempt to review or weigh it.
In a case like the present it would be dangerous in the ■extreme for this court to attempt to find the facts or to draw inferences from facts proven, or to attempt to say what might be considered an act of negligence or sufficient evidence thereof. In our opinion the case upon this point ■should have been submitted to the jury, and in view of the fact that there must be a new trial, it is better that this court should not enter upon a discussion of tbe facts which lead us to this conclusion.
It was also urged that this case came within the Limited Liability act of Congress and that the defendants, owners of the Mamie, were not personally hable. The learned judge before whom this cause was tried held that the Mamie did not fall within the provision of the United States statutes, citing in support thereof Am. T. Co. v. Moore 5 Mich. 368, and The Mamie 5 Fed. Rep. 813. We are of opinion that these cases fully covered this question, and that the view taken by the court below upon this point was correct.
As we have thus passed upon all the material questions-raised, and are of opinion that the court erred upon the questions designated, the judgment will be reversed with costs- and a new trial ordered.
The other Justice concurred. | [
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Marston, C. J.
Harriett De Moss having received $900, offered to give it to the plaintiff in error, who was her father-in-law, “ on condition that he should make his will giving his property to his two children (one of them the husband of Harriett) equally in case her husband survived her, and in case she survived her husband then that plaintiff in error should will his property equally, to the remaining son and herself.” This proposition seemed to have been satisfactory, the money was paid over and a will afterwards made and executed, which the testator offered to read to Harriett, but she expressing confidence in the testator it was not read. Harriett De Moss dying intestate Robinson was appointed administrator and brings this action to recover back the money. The will gave certain of testator’s property to his wife and also bequeathed to her his real estate for and during the term of her natural' life, and subject to this life estate the real estate was bequeathed in accordance with the oral agreement with Harriett De Moss.
The administrator recovered in the court below, and we find no error in the record. The payment was made without consideration. The oral agreement related, in part at least, to real estate, and no valid agreement was made binding upon the plaintiff in error. The will he made , was not in accordance with the oral agreement, and even if it had been there was nothing to prevent his revoking the same, or selling or encumbering the same during his life-time. Under such circumstances the administrator was entitled to recover, and the judgment must be affirmed with costs.
Graves and Campbell, JJ., concurred.
Cooley, J.
This action is brought by John Robinson, administrator of the estate of Harriett I. De Moss, to recover from Jonah De Moss the sum of nine hundred dollars which it is conceded the intestate in her life-time let the defendant . have of her own moneys. The defence is this: That the intestate was the daughter-in-law of the defendant, and at the time of letting him have the money was living with her husband in his family; that the sum in question was all her means, and she and her husband had contemplated making use of it in the purchase of lands, but as it could not be of much avail in that direction without leaving them considerably in debt, she decided to offer it to the defendant to pay a mortgage on his homestead, if he would agree that in the event of her surviving her husband the share^ the husband would otherwise have taken in the defendant’s estate should be-willed by defendant to her. The proposition was made and assented to. Unfortunately the terms are not made very clear' by the evidence, and there is reason to believe they were not very definite in the minds of the parties. Defendant testified that Harriett said she wanted it so fixed that if' she outlived her husband she would come in as one of two-heirs — defendant having but one child besides her husband. The substance as stated by other witnesses is not very different, and on all hands it is agreed that the arrangement was-to be completed by a will executed by defendant. The-money was paid over and the will was made. This bore-date April 24, 18Y6. By this the defendant gave to his-wife his household goods, pictures and library for her life, and “ the right to occupy ” and have one-third the net proceeds of his homestead of twenty acres for her life-time;. these gifts to be in lieu of dower.- He then gave the remainder of his property to his two children, but provided that in case-the husband of Harriett died in her life-time, Harriett should have the share that otherwise would go to him. This will was executed in due form, and defendant offered to show ifr to Harriett, but she expressed a confidence that it had been executed according to agreement, and did not look at it. The will remained unaltered until Harriett’s death, and she- and her husband continued to live with defendant.
The question is whether this will is a sufficient consideration for the money defendant received. This, it seems tome, must depend upon whether the will complies with the-understanding under which it was made. There is nothing-in the nature of the act to be done that precludes a party from bargaining for a benefit to be received by will; and promises to reward services in that way have been frequently .considered and held valid. The cases of Fenton v. Emblers Burr. 1278; Jacobson v. LeGrange 3 Johns. 199 ; Patterson v. Patterson 13 Johns. 379; Martin v. Wright 13 Wend. 460; Eaton v. Benton 2 Hill 576; Bayliss v. Pricture's Estate 24 Wis. 651; Jilson v. Gilbert 26 Wis. 637; Little v. Dawson 4 Dall. 111; Snyder v. Castor 4 Yeates 353, and Sword v. Keith 31 Mich. 247, either affirm or recognize this principle, and in Faxton v. Faxon 28 Mich. 159, it is said that such a promise does not differ in its essentials from any other. "Where it rests in parol its performance conld not be enforced in equity if lands were to be devised; Harder v. Harder 2 Sandf. Ch. 17; Gould v. Mansfield 103 Mass. 408; unless under such circumstances as would justify the enforcement of a parol contract for the conveyance of lands; McClure v. McClure 1 Penn. St. 374; but if the contract is not within the statute of frauds, equity may compel those on whom the legal title has devolved to convey lands in fulfillment of the promise to give them by will: Randall v. Willis 5 Ves. 262; Fortescue v. Hennah 19 Ves. 67; Brinker v. Brinker 7 Penn. St. 53 ; Logan v. McGinnis 12 Penn. St. 32; Mundorff v. Kilbourn 4 Md. 459.
In this case the contract was not in writing, and it contemplated that lands should be devised. It was not of its own force, therefore, a valid contract. But it was fully performed on the part of the intestate, and if the will which was made by defendant was in accordance with the understanding, it was fully performed by him also. The intestate 'continued to reside with defendant up to the time of her death, and had defendant deceased first, she would have had the benefit of the provisions made on her behalf by the will. This performance on both sides relieves the case of any question that might otherwise arise under the statute of frauds.
Did then the will as made conform to the understanding of the parties ? This is a question of fact, but it seems to me there is abundant evidence from which the jury might have found that it did. It could not have been contemplated that the rights of defendant’s wife were to be disturbed or restricted: she had a contingent right of dower which defendant could not take from her, and she would also be entitled, in case she survived him, to certain articles of personal property. The circumstances of the parties are not fully explained in the evidence, but it is evident the property was quite limited in amount and value, and it is doubtful if she would receive anything under the will to which she was not entitled without it. This again is a question of fact. So far as the occupation and use of the land is concerned it is plain, I think, that the intention was to give her just what she would be entitled to as dower. If so, I do not see how it can be said the defendant did not perform his agreement.
' The circuit judge instructed the jury that if they should find there was a complete giving of the money by decedent to her father-in-law, the defendant, retaining no rights and looking to no ultimate benefit for herself, or for another in case of her decease, then the plaintiff could not recover. If they found otherwise, they were instructed they must return a verdict for the plaintiff. This instruction made the agreement under which the money was paid wholly inoperative. In this I think there was error. I am of opinion that if the contract was substantially complied with by the will which defendant made, and which was allowed to remain unrevoked until the decedent’s death, then she had received full consideration for the money she paid to the defendant, and her administrator cannot recover it back.
■ The judgment, therefore, I think, should be reversed. | [
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] |
Marston, C. J.
~We shall not enter upon any discussion of the merits in this case as we find, objections fatal to the complainant’s obtaining the relief sought, in a court of chancery.
It appears and is not disputed that the complainant was not in possession of the premises at the time of filing her bill of complaint, and that one of the defendants was in actual possession, and it also appears that a suit was actually pending in the circuit court to settle the'right of possession, and that the same is still pending and undetermined. The complainant has therefore a remedy at law and should pursue it.
The decree dismissing the bill will be affirmed with costs, but so modified as to be without prejudice.
The other Justices concurred. | [
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] |
The court
held that the board of supervisors had power to subpoena (Comp. Laws, § 469) but not to arrest or commit for contempt, and as the petitioner had already been released, farther proceedings under the writ would be unnecessary. | [
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6
] |
Graves, J.
Baer brought ejectment for certain premises situated in St. Clair county and known and designated as lots «even and eight and the east twenty feet of lot six in block thirty-three of the village of Fort Gratiot. The action was tried before a jury and at the close of the evidence the circuit judge directed a verdict in favor of the plaintiff. The .general question is whether the circuit judge was warranted in refusing to take the sense of the jury on the facts.
The plaintiff claimed title by purchase on sale made by the sheriff on the foreclosure of a mortgage made by William D. Wright to the plaintiff in 1873, and one of the main subjects of controversy at the trial was whether this foreclosure was valid or not. The sale was made in 1877, and the affidavit then made by the publisher of the newspaper to perpetuate regular proof of publication of the notice of «ale imported that the notice had not been sufficient. Two years later the same, person made another affidavit winch ■assumed to correct the first and show that in fact the notice was duly published, and both affidavits were introduced as evidence before the jury. He also testified as a witness on the subject and gave evidence tending to show that the sale was regularly advertised and that the original affidavit was inaccurate through mistake.
It will be seen from this that the evidence to show a valid notice was conflicting and the defendants made it the subject •of a specific request. The admission of the evidence to prove that in point of fact there was lawful notice was •entirely proper. But it was not competent for the judge to treat it as conclusive and withhold it from the consideration of the jury.
When Wright gave the mortgage he was in possession under color of title and in the absence of anything to the •contrary the presumption is that he was owner of the inheritance, and in case the foreclosure was lawful the plaintiff by his purchase thereon acquired the same interest unless the tax titles were in the way " There is no dispute that at the time Baer negotiated with Wright about loaning the money and taking the mortgage, the Harrington tax-titles were regarded by Baer as obstacles, and that Wright as principal and Mr. Atkinson as his surety gave him their bond to indemnify Mm against those titles. Having taken upon him tMs obligation to protect Baer against them, Mr. Atkinson could not be allowed to set them up against Baer’s mortgage title, and there is notMng in the case to show that Stevenson who claims under Atkinson is in any better position.
The tax title held by Mr. AtMnson is for the taxes of 1874, and there is considerable evidence tending to show that the proceedings were invalid. But there is also evidence wMch is positive. The assessment roll was produced and it appeared therefrom that lots five, six, seven and eight of block thirty-three, which included the premises in controversy were assessed together at $850, the tax being $42.06; and that the portion of the tax estimated as the share of lot five and the west five feet of lot six was received by the collector, and that the residue of lot six and lots seven and sight were returned. The tax-title of Atkinson having originated in these proceedings it is not valid. There was no authority to cut up into parcels the premises assessed in one body and at one sum and arbitrarily apportion to a specific part a particular , share of the whole tax.
. The judgment is reversed with costs and new trial granted.
The other Justices concurred. | [
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] |
Cooley, J.
The action in the circuit court was replevin by "Woolaver against Eldred to recover possession of a yoke of oxen. Woolaver had jmrchased the oxen of one Gardner who had for some time been engaged in the performance of a logging contract for Eldred, in the course of which he had the possession and use of a yoke of oxen belonging to his employer. These oxen had become injured, and it was agreed between Gardner and the agent of Eldred that Gardner should be at liberty to purchase of a third person the ■oxen now in question, and that Eldred should pay for them, on the understanding that they should become the property of Gardner if the balance in his favor on settlement was ■sufficient to pay for them.
The parties never came to a final settlement, and it was a matter in dispute on the trial whether anything was due to Gardner when his contract was completed. Eldred’s agent had charged Gardner with the sum of $125 on the books for ■damage to cattle and for their use, and when on the stand he was asked whether the damage and the use were equal to that sum. The question was ruled out, and this ruling forms the ground for an exception. The difficulty with the ■question was that there was nothing in the case to show that Gardner had ever agreed to pay for either the use of the oxen, or for any damage to them. Without such an agreement he could not be liable for the use, and he could only be held for any damage to them in some form of action in tort.
It is also assigned for error that the court had no jurisdiction, because the value of the property replevied was under ■one hundred dollars. This, it is said, appears from the appraisal, which placed the value at ninety dollars. In the ■declaration the value was alleged to be one hundred dollars, and damages for the detention were claimed to a still larger amount. The case made by the declaration was therefore not one within the jurisdiction of a justice of the peace. We have on two or three occasions alluded to some of- the difficulties which attend this question, when the failure of jurisdiction — if the value is to determine it — can only appear when the value is shown by the appraisal after the writ is served, or by the evidence on the trial. Kittridge v. Miller 45 Mich. 478, is particularly referred to.
We do not care to consider these difficulties at this time, because the case does not call for it. The plaintiff had recently purchased the cattle at a price exceeding one hundred dollars, the defendant had taken them from his possession, without his consent, and he might well estimate his ■cause of action at a sum exceeding the jurisdiction of a justice of the peace in actions of tort. After obtaining the property on the writ, he was not interested in showing its value, except to reduce it as far as possible for the contingency of a failure in the suit which should entitle the defendant to recover the value. For no other purpose than for an assessment of value in defendant’s favor does the value become an issue in the suit. But the value is many times of less importance than the damages.
Another question made does not require attention.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
This case comes up on an appeal against a decree made in the circuit court in chancery for the county of Saginaw dismissing complainant’s bill. The end sought by the cause is to quiet complainant’s title as against the title obtained by the State under sales of the lands for several years for unpaid taxes. The objection which is insisted on against the title acquired by the State is that the assessor’s certificate was in each year fatally defective.
The lands are vacant and the Auditor General is entirely passive, and in no event could he meddle with them except as authorized by law. The right the State holds in the lands is not subject to litigation in this way. The law has not commissioned the Auditor General to represent the State for any such purpose.
What is contemplated is to annul the title derived to the State through the tax proceedings, and the suit is virtually therefore against the State itself. But we fail to find that it has consented to be made a litigant in this manner in regard to any land to which it claims title.
This is not a case where tax proceedings are still going on and a claim is made that they are tainted with fraud, or that some officer has either acted in an unauthorized or illegal manner or is about doing so.
It is one where the proceedings, have been allowed to culminate in sales to the State and where the tax title cannot be contested and set aside unless the State consents to become a litigant for .the purpose of the controversy and points out the officer to be made a party. The State’s title to any other vacant lands could with equal propriety be forced into controversy in chancery without its assent.
The want of jurisdiction is clear.
The decree is right and must be affirmed with costs.
The other Justices concurred. | [
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] |
Campbell, J.
Waterman, in August, 1868, began an action of ejectment against Reading, who was in possession as purchaser under mesne conveyances from Anna H. Dickson, of lot 27 in William Justice’s plat of Niles, to recover that lot, on which Reading had begun and nearly completed very expensive improvements. It appears from the record that Waterman, in May,.1849, bought this land of Anna H. Dickson, and gave back a purchase-money mortgage. On the 18th of December, 1852, she began to publish notice of a statutory foreclosure, the sale being fixed for March 15, 1853, on which day she bid off the premises, and the deed was in a few days put on file with the register of deeds. The land was never redeemed, and Waterman remained in possession until May 15, 1855,-when he. surrendered possession to Mrs. Dickson, who subsequently sold to the party through whom Reading derived his title.
The ejectment suit was allowed to sleep until 1878, when it was brought to trial, and Waterman prevailed in the Berrien circuit on the ground that the foreclosure was irregular. He proved no notice to quit, and prevailed on the supposed defect of the foreclosure. He never redeemed, and never offered to redeem.
While it is the settled law of this State that a mortgagee has no right to take possession until foreclosure absolute, as decided in Newton v. McKay 30 Mich. 380, and Lee v. Clary 38 Mich. 223, as well as some other cases which have'been before ns, yet it was intimated in Newton v. McKay, that where a mortgagor voluntarily puts a mortgagee in possession, he may thereby preclude himself from relying on grounds otherwise open to him. "We think it would be-entirely wrong to allow a mortgagor, who has deliberately and intentionally yielded up possession to a claimant whose rights, if any, are derived from his own contract, to treat the possession as tortious and bring ejectment without either notice or payment. "We have no doubt that Mrs. Dickson and her grantees were lawfully in possession, whether the-foreclosure was regular or not, and that they could not be ousted by ejectment.
But inasmuch as the controversy hereafter may present', some new features, we are obliged to consider the questions raised under the foreclosure .itself. These questions arise touching the notice of sale, and the sheriff's deed.
The sheriff’s deed is said to be defective in two respects. It gives a wrong date to the mortgage, and the certificate indorsed upon it declares the deed if not redeemed will become effectual on the 15th day of March, 1844, when it should have been 1854.
The sheriff’s deed described the mortgage correctly in all but its date, which was put as May 8, 1848, when it should have been 1849. The names of the parties, and the date and volume and page of record, were properly set forth, as-well as the day and place of sale, and the amount of purchase-money. The statute contains no direction concerning the form of the sheriff’s deed beyond the requirement that it shall correctly show the price of the parcels sold. In all other respects it leaves the instrument to be determined by the rules of the common law. There can be no difficulty from this deed in tracing it back to the mortgage as recorded,, and any incorrect matter would be at once made manifest and corrected by that reference. Slater v. Breese 36 Mich. 77; Shepard v. Shepard id. 175. In the absence of any statute to the contrary we think the rules applicable to other deeds are applicable to this; and that the deed contains enough to remove any difficulty.
The error in the endorsement cures itself by reference to the deed itself, from which the time of redemption could be determined at once: Johnstone v. Scott 11 Mich. 232. Such a mistake was there held unimportant.
The blunders which appear to have got into the notice of sale indicate very careless printing, and the changes in the different-issues are not easily explained. But how far they can be allowed to defeat the sale depends on the effect they were likely to have on persons interested.
Authorities are cited and arguments made on this matter, which relate to proceedings which are had of a hostile character and ex parte, where it is commonly held that such action contrary to the usual course of law, and against persons who have not the common-law benefits of self-protection, should be held invalid, unless conforming strictly to statutory authority.
We held in Lee v. Clary 38 Mich. 223, that statutory foreclosures did not come in all respects within the same mischief. The statutes regulating them are made to enlarge and not to cut down the rights of mortgagors. Before such statutes were passed, sales made under a power of sale contained in a mortgage were governed by the same rules applicable to sales under any other power, and courts in the absence of statutes have never applied to such powers any such technical rules as would impair the security of purchasers. The power is part of the contract, and should be construed on principles applicable to contracts, and not as a hostile process.
The statutes were intended to prevent surprise or unfairness, and they should be enforced in everything substantial. Courts cannot disregard any of their positive provisions.. But on the other hand those provisions cannot be enlarged or unreasonably construed so as to render mortgage sales unsafe, or to make bidding hazardous. The law was designed to encourage and not to destroy recourse to these simple and cheap remedies; and while no substantial right should be disregarded, substantial regularity is all that should be held imperative.
The only things absolutely required in the notice of sale are — the names of the parties original or by assignment, the date of the mortgage and of its record, the amount claimed to be due, and a description substantially agreeing with that -in the mortgage.
In the present ease the body of the notice contained the name of the mortgagor, but the mortgagee was named therein “ Dixon ” and not “ Dickson.” . These names, however, are the same in sound, and legally identical unless shown to refer to two different persons. Here the name of Mrs. Dixon was referred to as mortgagee and the mortgage itself removed any such possibility of error. The name signed to the notice was shifted by some accident to the types, but as the notice showed the foreclosure was on behalf of the original mortgagee, no harm could come from such a manifest slip, which could mislead no one.'
The notice was first published December 18th, but was dated December 28th. This was also of no account as the error was palpable. The day of sale was properly given, and the publication full.
The notice gave the date of the mortgage once correctly, and once incorrectly. The date and place of record, and the volume and page were also given accurately. It was manifest on the face of the notice that one of these dates was wrong, and the means of correction were given by the record. It is indeed suggested that the date given correctly as 1819 refers to the bond and not to the mortgage which is mentioned as of 1818, the days of the month corresponding. This does not strike us forcibly, for it would not be likely that a mortgage given one year would refer to a bond not made until a year after. It is not to be supposed that purchasers under foreclosure sales look at the dates of instruments without consulting the records to ascertain the state of the title. The information given by this notice directed every one immediately to the record, and that necessarily explained ,the true date of the two dates set out in the notice itself. We cannot imagine that any one could be deceived by the imperfection.
We are, therefore, of opinion that none of the mistakes were substantial, or operated in any way to the prejudice of Waterman. Judgment should have been given in favor of Reading. As the case was tried by jury we can render no-final judgment on the merits, and can only reverse the judgment below with costs of this court and remand the case for a new trial at the circuit.
The other Justices concurred. | [
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] |
Bushnell, J.
Plaintiffs, property owners in the city of Adrian, sought an injunction permanently restraining the city commission of Adrian from issuing any building permit for the erection of a structure to be used for business purposes on a lot located at the southwest corner of Toledo and Broad streets.
Plaintiffs do not contest the validity of the Adrian zoning ordinance in its entirety, but attack the validity of that portion of the ordinance which places the west side of Broad street between Church and Toledo streets, and the south side of Toledo street between Broad and North Main streets, in the commercial district.
The zoning ordinance in question was adopted on July 31, 1939, in the regular way, by two readings at one meeting and the third reading at another meeting of the commission. Efforts were made to get the public interested in this zoning ordinance by advertisement in the Adrian Daily Telegram and display of the ordinance and maps.in the city clerk’s office for a period of three weeks. One of the city commissioners testified that, so far as he knew, no one came to the city hall to inspect the ordinance or evidenced any interest in the matter; and that no objections were made by anyone at any of the meetings when the ordinance was read.
Main is the principal north and south street of the city and is also State Highway M-52. Maumee is the principal east and west street through the business district. Broad is the first street east of Main and runs parallel with it; and Toledo is the first street north of Maumee and runs parallel with it. Church is the first parallel street south of Maumee. The ordinance places the west side of Broad street between Church and Toledo streets and the south side of Toledo street between Broad and Main streets in the commercial district. The east side of Broad street, except at the corners of Manmee and Broad and Church and Broad, is placed in the residential district.
On the northwest corner of Broad and Maumee streets is the post office, which occupies 126 feet on the west side of the street. The next property to the north is the Baptist Church, which occupies 166 feet; next is the Peterson residence with an 80-foot frontage; and north of this is the property in question known as the Smith residence with 120 feet frontage on Broad street and a depth of 165 feet on the south side of Toledo street. On the east side of Broad street, beginning at the northeast corner ‘of Maumee, is the Methodist Church, directly across the street from the post office. The other properties in order going north of the church are the Redfield and ITart residences; a residence occupied by the Mott Funeral Home, and directly across the street from the Smith property is the residence of Robert T. Moreland. All .of the properties north of Toledo on the east side of Broad are residential, as is also the northwest corner of Toledo and Broad streets. On the south side of Toledo, going west from Broad street beyond the depth of the Smith property (165 feet), is the Randall residence, and west of that is the Everiss Funeral Home. Beyond these are several residences, a doctor’s office and a commercial garage. A grocery store occupies the southeast corner of Toledo and Main streets.
There is conflict in the testimony as to how adjacent residential values will be affected by business use of the Smith property and considerable complaint is made by some of the witnesses as to the unreasonableness of using the center of Proad street as the boundary line between business and residential districts,
Those who testified on behalf of the city admitted the difficulty caused by the gradual change in the use of property located within a block or two of the business center of the city, namely, the intersection of Maumee and Main streets. At one time the properties occupied by plaintiffs near the corner of Broad and Toledo streets were some of the finest residences in the city. However, business has gradually spread from Maumee and Main east towards Broad and north towards Toledo streets; and there is at the present time considerable congestion of traffic at this corner. The 10 residences on the west side of Broad and the south side of Toledo are in two city blocks which include 75 commercial and nonresidential structures. So far as the record indicates, plaintiffs’ properties are either within or across the street from this two-block business area.
The “Smith” home, unoccupied for some time, has been for sale for 8 or 9 years. A former county clerk, now engaged in the real estate business, testified that this property is unsuitable for residential purposes and that it cannot be remodeled and made into a profitable apartment building. In his judgment it can only be used profitably for commercial purposes.
The testimony in the record is quite extensive with respect to the industrial growth and activity in the city of Adrian and the change in conditions during the last 10 years. The court concluded that the city commission had acted in a reasonable and fair manner and for the ultimate benefit of the community, and that the inclusion of the west side of Broad street in the commercial district and the east side in the residential district was reasonable.
In the case of City of Pleasant Ridge v. Cooper, 267 Mich. 603, the court discussed the factors essential to the validity of a zoning ordinance where the use of property was limited to residential purposes. A zoning ordinance must be reasonable, and its reasonableness becomes the test of its legality. City of North Muskegon v. Miller, 249 Mich. 52, 57. And see authorities cited in the two opinions, supra. In the instant case, the four blocks adjacent to the intersection of Main and Maumee streets are occupied almost exclusively by business and public buildings.
To say that the southwest corner of Broad and Toledo, one block away, should be confined to residential use would be to deny a reasonable and natural use of this property. To permit it to be used for commercial purposes may affect the value of property on the east side of Broad so far as residential use is concerned. However, mere depreciation in value by itself is not enough. The test is whether the zoning classification is unreasonable. See authorities collected in annotations in 86 A. L. R. 659 and 117 A. L. R. 1117 et seq. Bach zoning case must be determined upon its own facts and circumstances. A careful examination of the testimony presented in the instant .case with respect to the character of the neighborhood and the proximity of the property to the center of the business district of Adrian requires agreement with the conclusion reached by the trial judge.
The order of the trial court dismissing plaintiffs’ bill of complaint without costs is affirmed. No costs are to be taxed in this court.
Sharpe, C. J., and Boyles, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
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] |
Boyles, J.
Plaintiffs filed a bill of complaint in chancery asking that sale on execution of certain lands in Clinton county be set aside. The circuit judge, on hearing, dismissed the bill of complaint. The lands were levied on and sold under an execution out of the circuit court on a transcript of judgment rendered in justice court. Plaintiffs attack the validity of the levy and sale on two grounds: (1) that the docket entries show the justice court judgment to be void; and (2) that the transcript was not properly filed because of the lapse of time between the making of the affidavit of amount due and the filing of the transcript in the circuit court.
1. Plaintiffs claim that the docket entries do not show that the plaintiff in justice court appeared within the hour of adjournment, and that the justice thereby lost jurisdiction except to render a judgment of nonsuit. The docket entries are set out in full in the record. They show that both the plaintiff and defendants appeared by attorneys on the return day of the summons, August 20, 1932, at 9 a.m., and the cause was adjourned to September 3, 1932, at 9 a.m., at the same place; that on September 3, 1932, by consent of parties, the cause was adjourned to September 10, 1932, at 9 a.m., at the same place. Similar successive entries show that by consent of parties the cause was adjourned to September 17, September 22, November 19, November 26, November 28, and December 3, 1932, these successive docket entries showing in each instance that the cause was adjourned to 9 a.m., at the office of the justice. The entry for December 3, 1932, states:
“Dec. 3, 1932. Case called. Parties appear as before.
“Plaintiff declares orally on all matters provable under the common counts in assumpsit and specially on a promissory note. * * *
“Defendant attorney withdraws his appearance.
“After waiting one hour and defendant not yet appearing S. D. Rathbun was sworn and testified as a witness on behalf of the plaintiff. ’ ’
The docket then indicates the entry of judgment for the plaintiff.
It is apparent from the foregoing that defendants’ (in this case plaintiffs’) attorney appeared in court on December 3d when the case was called and remained until after plaintiff had declared orally, before withdrawing his appearance. The justice then waited one hour, and, “defendant not yet appearing,” a witness was sworn, and judgment entered.
3 Comp. Laws 1929, § 16273 (Stat. Ann. § 27.3531), requires every justice of the peace to keep a docket in which shall be entered, inter alia, the time when the parties appear before him, and the time to which every adjournment is made. 3 Comp. Laws 1929, § 16085 (Stat. Ann. § 27.3285), requires that a judgment of nonsuit be rendered if, after an adjournment, the plaintiff fails to appear within one hour after the time to which the adjournment shall have been made. By judicial construction, this has been interpreted to mean that the justice loses jurisdiction unless the plaintiff so appears.
The decisions relied upon by plaintiffs are readily distinguishable from the case at bar. In Moore v. Frederick, 197 Mich. 573, the justice docket did not show whether plaintiff appeared within the hour after the return, or that the justice waited one hour for defendant to appear. In that case, the defendant did not appear in court at all. It was held that “a docket as barren of entries as is the one in this case is fatally defective.” In Scott v. Brown, 175 Mich. 447, neither party appeared at the time stated, or within the hour, and the justice attempted to hold the case open on an oral telephone request by the plaintiff made before the return hour. In Mudge v. Yaples, 58 Mich. 307, the docket entry showed the summons returnable on a certain day, but failed to indicate the day on which the plaintiff appeared in court, and affirmatively showed that the defendant did not- appear in court. In holding that the justice had lost jurisdiction, the court said:
“ While the docket of a justice must receive a fair and reasonable interpretation, and due allowance be made for the fact that our ordinary justices of the peace are not legal experts, and not expected to keep their dockets with the same nicety of legal form and expression to be found in the records of our higher courts, as held in the case of Vroman v. Thompson, 51 Mich. 452, yet the docket must show by a reasonable intendment that the justice had jurisdiction. The appearance of the plaintiff within one hour of the time named on the return-day of the summons must be affirmatively shown where there is no appearance of the defendant, or jurisdiction is lost.”
In deciding a case where the docket failed to state the place to which an adjournment was made (Whelpley v. Nash, 46 Mich. 25), this court said:
“In recording an adjournment the justice neglected to state to what place it was made. This irregularity in the entry worked no prejudice to defendant. He was not misinformed or misled. He appeared in person and answered. The defect was a clerical mistake which harmed no one.”
The case of Prouty v. Brown, 125 Mich. 507, is very much like the case at bar. Process was issued and served, returnable on a day certain, at 9 a.m., at a place certain. The docket entry showed that on the return day, at the time and place stated, the cause was called and a written stipulation filed without appearance of parties adjourning the case to a day certain, ‘ ‘ at same hour and place. ’ ’ On said adjourned day, the cause was again adjourned by consent without any appearances to a day certain, “at same hour and place.” The docket entry then shows:
“September 27, 1899. Case called. Plaintiff appeared personally and by George Bennett, his attorney. Defendant appeared specially by E. A. Hawley.”
On transcript, the question was raised that the docket failed to show at what hour and place the case was called on September 27th, or at what time the plaintiff appeared. This court held that the lower court was in error in ruling that the docket showed upon its face that the justice had lost jurisdiction:
“We think the plain inference from the docket is that the case was called within the proper time. Dockets of justices of the peace must receive a fair and reasonable interpretation. It is true they must disclose jurisdiction, which we think this docket does upon its face. This is not like the case of Mudge v. Yaples, 58 Mich. 307. In that case the defendant did not appear at all, and it was held that, as the docket did not show that the plaintiff appeared on the return day of the summons, and within one hour after the time fixed therein, the justice lost jurisdiction.”
In the case at bar, the docket entry for November 28,1932, shows an adjournment to December 3,1932, at 9 a.m. of said day, at the office of the justice. The'next entry reads:
“Dec. 3, 1932. Case called. Parties appear as before.”
The docket entries are sufficient to show that the justice did not lose jurisdiction to enter the judgment.
2. Was the lapse of time between making of the affidavit for transcript and the filing of the transcript in the circuit court fatal? The affidavit was made August 24,1935, and filed with the clerk of the circuit court August 28, 1935. August 25, 1935, fell on Sunday; therefore, only two secular days intervened between the date of the affidavit and the date of its filing. 3 Comp. Laws 1929, § 16094 (Stat. Ann. § 27.3294), provides for making and delivering to a justice of the peace an affidavit setting forth certain requirements, whereupon the justice shall give a certified transcript of the judgment and proceedings as they appear upon the docket. 3 Comp. Laws 1929, § 16095 (Stat. Ann. §27.3295), provides for the making of an affidavit stating the amount due upon the judgment, and making it the duty of the clerk of the circuit court to file such affidavit and transcript in his office when requested, and to enter the judgment, noting the amount sworn to be due. While these statutes contemplate the making of two separate affidavits, this court has held that there is no objection to the combining of the facts in one affidavit where there is no material delay in preparing and filing the transcript, inasmuch as all such affidavits must be filed with the clerk. Udell v. Kahn, 31 Mich. 195. In that case, this court held that, an affidavit sworn to on the 19th day of December and filed with the county clerk on the 22d of December was sufficient. In the later case of Shepard v. Schrutt, 163 Mich. 485, we held:
“In Udell v. Kahn, supra, the transcript was filed within three days after the affidavit was sworn to, and it was held to be timely, and that there was no such delay as might give rise to a presumption that payment after the date thereof, and before filing with the clerk, may have been made, as was the case in Bigelow v. Booth, 39 Mich. 622, where 8 days had elapsed, and in Berkery v. Wayne Circtiit Judge, 82 Mich. 160, where 11 days intervened. So it must be held that the clerk had authority to receive, enter, and docket this transcript.”
The lapse of time between the date of the affidavit and the date of filing, in the case at bar, does not affect the validity of the transcript, and of the levy and sale.
In the decisions we have examined, the validity of the docket entries and judgment was attacked directly by appeal or certiorari. In an early case, this court held the irregularity in the docket entry should be corrected by special appeal or certiorari in the same suit. Talbot v. Kuhn, 89 Mich. 30 (28 Am. St. Rep. 273).
The equities in the case at bar are not with the plaintiffs. The judgment in justice court was rendered against them in 1932. While the case was there pending, they made a payment on their debt and entered into a stipulation acknowledging the amount of the balance due, which they have never paid. The only apparent occasion for their attorney to appear in justice court on the final day was to see that judgment was not taken in excess of the agreed amount. The transcript to the circuit court was taken and filed in 1935. At that time, plaintiffs were notified of that fact, and of the levy made against their lands. The property was sold under the execution levy in 1937. The sheriff’s deed was not delivered until 1939, at which time plaintiffs were again notified. Plaintiffs filed their bill of complaint in 1940. Plaintiffs had eight years in which to attempt to pay their debt. While this is not claimed to be controlling, plaintiffs are not in a good position to seek equitable relief.
Decree for defendants (appellees) dismissing bill of complaint is affirmed, with costs.
Sharpe, C. J., and Bushnell, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
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] |
Butzel, J.
The State of Michigan has appealed from the denial of its claim for franchise fees for the year 1936 against the receiver of Nelson Brothers Company, a Michigan corporation. The State filed a claim for $7,015.02, for corporation privilege taxes under 2 Comp. Laws 1929, § 10140, as amended by Act No. 13, Pub. Acts 1933 (Ex. Sess.) (Comp. Laws Supp. 1940, § 10140,-Stat. Ann. § 21.205), The receiver tendered the sum of $4,010.07. This amount excluded the sum of $2,804.95, which was claimed by the State for the 1936 privilege fee. The State appeals from a decision sustaining the position of the receiver.
The corporation charter automatically became void on September 1, 1935, under Act No. 327, § 91, Pub. Acts 1931, as amended by Act No. 96, Pub. Acts 1933 (Comp. Laws Supp. 1940, § 10135-91, Stat. Ann. § 21.91). On September 5, 1935, upon petition of the corporation and payment of one-fourth of the fees then delinquent, the State granted an extension of time for payment of the balance due until May 1, 1937, in accordance with Act No. 67, § 1, Pub. Acts 1935 (Comp. Laws Supp. 1940, § 10135-91d, Stat. Ann. § 21.238), and thereby reinstated the company with full and complete corporate powers. On August 31, 1936, when the privilege fee of 1936 became due, the State extended the time for payment to May 1, 1937, in accordance with Act No. 67, Pub. Acts 1935. The corporation subsequently paid delinquent privilege fees for the years 1933 and 1934, but no other fees were paid.
There is only one question involved in the case. Act No. 67, Pub. Acts 1935, provides that if any corporation shall fail to pay the balance due within such extended time, the charter shall become void as of the date of final extension. Does this mean that the corporation could do business after August 31, 1936, and until May 1, 1937, and be exempt from payment of the 1936 privilege fee and claim, under its interpretation of the act, that its charter was void during such interim, notwithstanding the fact that it continued to do business without the payment of such privilege fee? There is no direct language in the act that excuses the corporation from payment of the privilege fee for the extended period. The salutary purpose of Act No. 67, Pub. Acts 1935, was to give corporations additional time in which to pay the privilege taxes. The statute, being remedial, should be liberally construed in favor of the corporation to avoid forfeiture of its charter. Defendant contends that the act retroactively voids the corporation’s charter as of the date when the last extension was granted, but that it nevertheless could do business and be a live corporation without payment of the privilege fee in the interim. The applicable rule is well stated by Justice Cardozo in Michigan v. Michigan Trust Co., 286 U. S. 334, 346 (52 Sup. Ct. 520, 76 L. Ed. 1136), as follows:
“To protect through a receiver the enjoyment of the corporate franchise and then to use the appointment as a barrier to the collection of the tax would be an injustice to the State and a reproach to equity. ’ ’
While the cited case presented somewhat different facts, it nevertheless fully discusses the Michigan law and particularly refers to In re Detroit Properties Corp., 254 Mich. 523, and notes the distinction therein made between a corporation’s right to “be,” or exist, and the right to “do,” or transact, business. The obligation of a corporation to pay the privilege tax is a liability that becomes due and owing on the date prescribed by law. In re Johnstonp-Newton Co., 225 Mich. 53. The privilege fee required by Act No. 327, Pub. Acts 1931, is in the nature of an excise tax for the right to do business rather than the right to he, or exist, and it must be paid by the receiver who continues to carry on the business of the corporation. In re Detroit Properties Corp., supra; Detroit Trust Co. v. Detroit City Service Co., 265 Mich. 312. In Re Detroit Properties Corp., supra, 525, 526, 531, we said:
“The privilege fee is an excise tax, not upon the right to be a corporation, but upon the activities of the corporation in the exercise of its corporate fran chise, or, as it is sometimes expressed, upon the franchise ‘to do,’ not upon the franchise ‘to be.’ Union Steam Pump Sales Co. v. Secretary of State, 216 Mich. 261, 272; In re Detroit & Windsor Ferry Co., 232 Mich. 574; In re Truscon Steel Co., 246 Mich. 174; Cobbs & Mitchell v. Corporation Tax Appeal Board, 252 Mich. 478, 481. Actual transaction of business by a domestic corporation is not a condition of the tax. It is imposed on the right to transact. In re G. H. Hammond Co., 246 Mich. 179; 2 Comp. Laws 1929, § 10140. * * *
“So it follows that, in conducting’ the business under order of court, the receiver is exercising the franchise ‘to do’ of the corporation. Substantially all of the above authorities sustaining the tax so hold. * * *
‘ ‘ The tax is on the franchise, and, as the franchise is being exercised by the receiver, the tax is valid.”
In 1937, Act No. 53 (Comp, Laws Supp. 1940, § 10135-92Í et seq., Stat. Ann. 1940 Cum. Supp. § 21.243 et seq.), was passed, extending the time for payment of privilege fees, upon certain conditions, to September 1, 1939. It stated at the end of section 1 of the act that “if any corporation shall fail to pay the balance due within such extended time, the charter shall become void as of the date of the expiration of the period for which said charter may be extended by the Michigan corporation and securities commission. ’ ’ While the later statute uses more explicit language, we do not believe that it in any way constitutes a change from the former act, and we hold that Act No. 67, Pub. Acts 1935, did not grant the corporation the right to do business during such extended period without payment of the privilege tax or avoid and make unlawful the transactions of the corporation during the period of the extension, or provide that the corporation had ceased to func tion lawfully during the interim in which it was transacting business. The claim should be allowed.
The order of the lower court is reversed and the case remanded with instructions to allow the claim of the State for the full amount of its claim with interest. A public question being involved, no costs will be allowed.
Sharpe, C. J., and Bushnell, Boyles, Chandler, North, McAllister, and Wiest, JJ., concurred. | [
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Chandler, J.
Defendant conducts a produce business from the Detroit Produce Terminal. The building in question fronts on Green street in the city of Detroit, being some 300 feet in length and 50 to 60 feet in width. Along each side thereof is a loading dock, seven feet in width, and about four feet from the ground. The sides of the building, adjacent to the loading docks, are really a series of openings for hauling produce into and out of the terminal. The moving is done by means of two different types of apparatus, one being a movable truck with four wheels, the other a stationary skid or platform having four legs which is raised and moved by means of a hydraulic jack which can be run thereunder.
In the morning of June 7,1939, plaintiff, a peddler, was present at the terminal for the purpose of purchasing his wares for the day. He was standing on the edge of the south loading platform, facing in a southwesterly direction, about one and one half to two feet east of an empty skid which was also on the edge of the platform, engaged in conversation with four other peddlers. At this moment, Harry Solomon, one of defendant’s employees, approached from the west, pulling one of the skids upon which was a load of tomatoes estimated to weigh from 1,600 pounds to a ton.
The testimony becomes somewhat confused as to what occurred. One theory presented is that the skid being pulled by Solomon struck the corner of the empty skid near which plaintiff was standing, causing it to be forced against plaintiff and resulting-in pushing him from the platform. The other theory is that the skid hauled by Solomon struck an empty tomato box forcing it against the empty skid which in turn struck plaintiff and pushed him from the platform. Defendant, on the other hand, suggests that plaintiff jumped from the platform. In any event, he received injuries to his left foot and seeks to recover damages in this action.
The case was tried without a jury and the court entered judgment of no cause of action for defendant. Plaintiff has appealed.
In his opinion, the trial court found that the skid being pulled by Solomon struck the empty tomato box which caused the truck to deviate from its course into the empty skid which was then forced against plaintiff. He also found that Solomon was not guilty of negligence. This finding receives full support from the following testimony of Solomon:
“Q. Now, the empty tomato box that your skid hit-
“A. Yes, sir.
“Q. It was at your right, was it?
“A. Yes, sir.
“Q. And where was that empty tomato box in relation to the skid that was standing there?
“A. It was laying near the skid on the floor on the edge of the dock.
“Q. At the edge of it?
“A. That is more like in the middle of the dock, ■close to the edge. * * *
“Q. ‘‘Now, that box was lying--
“A. (Interposing-): Next to the skid, practically in my way.
“Q. Right to your right?
“A. Yes, sir.
“Q. Between you and the empty skid?
“A. Yes, sir.
“Q. Now, where were the men standing?
“A. Standing in front of the skid.
“Q. And when you say in front of the skid-
“A. (Interposing): Well, they were facing east. They had their back turned to the west.
“Q. Well now, there were some men standing then?
“A. Yes, sir.
“Q. Near the west end of the skid?
“A. Right.
“Q. With their backs toward you, facing east? “A.' Yes, sir.
“Q. How many men were there?
“A. About three or four, I believe.
“Q. There were three or four?
“A. Yes, sir.
“Q. Were there some men on the other side of the skid?
“A. No, sir: I did not see any.
“Q. You say as you came along there, you shouted, ‘Look out, I am coming through’?
“A. ‘Look out, I am coming through.’ Yes, sir. “Q. Where were you when you shouted that warning?
“A. I must have been about four feet away or so.
“Q. That is four feet away from what?
“A. From the empty skid. Yes, sir.
“Q. From this end (indicating)?
“A. Where those men were standing.
“Q. From the west end of the empty skid?
“A. West end; yes, sir.
“ Q. What did the men do ?
“A. They just stepped on one side.
“Q. Did they do that?
“A. They stepped close to the edge of the dock.
“Q. "When did they do that, when you shouted?
“A. When I shouted; yes, sir.
“Q. Then what happened ?
“A. I hit the skid; I hit the box and the box hit the skid and Mr. Bush jumped off the dock backwards.
“Q. Had you seen Mr. Bush prior to that time?
“A. Not until he jumped off the dock, because he was bending over; he had one foot on the dock and one foot on the beam. * * *
‘ ‘ Q. Now, did it appear to you as you approached the vicinity of this accident that you had room to pass between the north wall and the skid that was right on the dock?
“A. Well, I might have had room if them boxes hadn’t of been in my way; yes, sir; because it is a pretty close passage to go through.
“Q. In fact that loading dock is just about wide enough?
“A.' Wide enough for one skid on one side and one skid to go through.
“Q. Wide enough for one skid on one side and enough for one skid to go through?
“A. Yes, sir.
“The Court: The dock is 84 inches wide and two of those skids would be 76 inches.
“Mr. Dodd: That is right.
“A. It is about-
“The Court: That would not leave you very much clearance.
“A. It is about three and a half feet wide on the skid, not quite. '
“The Court: That would make it about 42 inches wide on the skid. It would make a pretty close fit.
“Mr. Dodd: No question about that.
“Q. (By Mr. Dodd): So that, what your truck, your hand truck, hit was an empty tomato box?
“A. Yes, sir.
“Q. And what happened to the tomato box? What did it do?
• “A. The tomato box went on one side of the skid, skidded around on an angle like.
“Q. The tomato box in turn caught the end of the skid?
“A. Yes, sir.
“Q. Which moved-
“A. (Interrupting) : Moved the skid.
“Q. Forward or sideways?
“A. Yes, sir; because I had to stop then.
“Q. Did your truck come in actual contact with the skid?
“A. Not with the skid, with the box, sir. * * *
“Q. You also testified that ordinarily what you tried to do is kick them out of the way?
“A. That is right.
“Q. Why did you not do that in this case?
“A. There was three men standing in front of the box and I didn’t see the box until I got on top of it, because when those men moved, I realized I could make that, but I didn’t realize my skid was going to hit the box, otherwise I would slow down ahead of time.
“Q. When you saw you were going to hit?
“A. You can’t tell because I am past the box.
“Q. So that you did not know you were going to hit the box until you passed it?
“A. That’s right.
“Q. That is the tomato box?
“A. Yes, sir.
“Q. You saw it before you passed it, though?
“A. That is right, but.I didn’t know I was going to hit it.
“Q. You did not know you were going to hit it?
“A. No, sir.
“Q. Now, did you see Mr. Bush before you hit the skid?
“A. No, sir; not until Bush jumped off the dock. I didn’t notice him because those men stood in front of him and I couldn’t see him. * * *
“Q. How many feet were you away from the Skid?
‘ ‘A. Now, wait a minute. As I was coming along to that skid, there was three men in front of Mr. Bush. When I come so close to them there, I hollered, ‘ Get out of my way. I am coming through. ’ And they moved and I hit the box.
“Q. Why didn’t you stop your hydraulic and skid before you ran into this skid that was standing right there?
“A. I figured I could make it through. If I knew I was going to hit him, I would stop.
“Q. In other words, you thought there was enough room. You knew that it was going to be close ?
“A. It always is close quarters, yes, sir.
“Q. Why didn’t you slow your truck to a very slow pace rather than go as fast as you did?
“A. When I hollered, I had to slow down, and I come almost to a stop, and I was trying to make a dead stop until the skid hit the box.
“Q. You hit that skid quite a severe blow, did you not?
“A. No, I hit the box. The force of my load don’t take much to slide that skid over. The blow is the weight of the load I had. ’ ’
The testimony also shows that Solomon was pulling the load of tomatoes at a ‘‘fast walk;” that he could not see the empty tomato box because of the men standing in front of him; and that he gave warning of his approach and as the men standing in front of him responded thereto, the empty tomato box came into view. By then, it was impossible to bring the heavy load to a stop.
Reviewing the entire record, we cannot find that the decision of the trial court was contrary to the preponderance of the evidence or that defendant’s employee was guilty of negligence as a matter of law as claimed by appellant.
Furthermore, the trial court expressed serious doubt as to whether plaintiff had established his freedom from contributory negligence, assuming defendant’s negligence to have been established. Although it is not necessary for us to decide this point, it may be noted in passing that the attitude of the trial court on this question is not without justification.
The judgment is affirmed, with costs to appellee.
Sharpe, C. J., and Bushnell, Boyles, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
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Bushnell, J.
Plaintiff, successor receiver of the 'Washington Park National Bank of Chicago, filed a claim against the estate of James W. Atkinson, deceased, in the sum of $7,783.26, which was disallowed by the commissioners on claims. Plaintiff appealed to the circuit court, where the matter was tried by the circuit judge sitting- without a jury. Plaintiff’s claim was allowed and judgment was entered in the sum of $8,511.09, which included interest to March 7, 1940.
Plaintiff’s claim consisted of two items of unpaid principal and interest, that known as Asset No. 47, in the sum of $6,446.19, and that known as Asset No. 48, in the sum of $1,337.07. These debts are evidenced by promissory notes, the bank holding as collateral thereto some bonds, stock certificates, and a master’s deed on real property.
The bank acquired this master’s deed in the following manner: On.July 17, 1928, John D. Austin and wife executed their bearer note for $7,500 to the bank, which was secured by a trust deed on real estate. On July 26, 1928, one Levinson obtained a judgment in the municipal court of Chicago against the Austins for $1,401.58, which, under the Illinois law, automatically became a lien upon the mortgaged real estate. On September 27, 1928, Atkinson purchased this real estate from the Austins, subject to the liens against it. The circuit judge stated that on November 23,1928, Atkinson purchased the $7,500 Austin note and trust deed from the bank and on the same day borrowed $4,600 from the bank, giving his note (Asset No. 47) therefor and pledging as security the Austin note and trust deed and other securities. Atkinson’s original note was renewed from time to time.
On June 25, 1930, a bill to foreclose the Austin trust deed was filed in the circuit court of Cook county, Illinois. This foreclosure bill was signed and sworn to by Samuel Mitchell and Washington Park National Bank of Chicago by Samuel Mitchell as its agent. Austin and wife, Atkinson and wife, and Matushek and Levinson, who claimed an interest in the property or a lien thereon, were named as joint defendants in the foreclosure proceedings. It is. stated in an affidavit attached to the bill that Mitchell was the duly authorized agent of the bank, with authority to execute the bill of complaint. In the bill it was alleged that the note and trust deed had been transferred to Mitchell for a valuable consideration, and that he was the legal owner thereof. After the taking of proofs before a master in chancery and the filing of his report, a decree of foreclosure was entered in Cook county containing the finding that there was due on the trust deed the sum of $8,966.55. The property was bid in by Mitchell for $9,261.40. Mitchell filed a receipt for $9,004.62, the amount due him under the terms of the decree, and the sale was confirmed. A master’s certificate of sale, issued to Mitchell on November 14, 1930, was assigned by him to the bank and a master’s deed was given to the receiver of the bank on September 27,1935. This deed recited that Mitchell had assigned the master’s certificate to the bank.
On April 18, 1933, the bank received a post office money order for $25, which, according to defendant’s brief, was apparently issued to Atkinson. The records of the bank show that this money order was deposited by the receiver in a Chicago bank. The record is silent as to any designation by Atkinson for the application of this $25 money order to any specific items of his indebtedness. However, each of the Atkinson notes here involved (Assets Nos. 47 and 48) bears an indorsement showing a payment of $5 on April 18, 1933. Another Atkinson note of $5,000 (Asset No. 46), not involved in the present litigation, bears an indorsement of $15 on the same date.
Appellant contends that plaintiff’s claim is barred by the statute of limitations (3 Comp. Laws 1929, § 13976 [Stat. Ann. § 27.605]), and, in any event, that Atkinson’s indebtedness was satisfied by the conversion by the bank of the Austin note and trust deed.
Plaintiff claims the payment made by Atkinson on April 18, 1933, tolled the statute .of limitations. Defendant does not dispute the facts that Atkinson made this payment or that it was applied by the bank in the manner herein stated. If the bank was directed by Atkinson to apply the payment in the manner it did, or if Atkinson failed to direct the manner in which the payment was to be applied to his indebtedness, the application which the bank made to the several notes was proper and tolled the statute. The bank produced its books and records to show its right to apply the payment as it did.
Defendant contends that the books and records of the bank were not admissible in. evidence as proof that the payment was received without direction from Atkinson as to its application.
The records of the bank were admitted as containing entries of transactions made in the course of business. These records were admissible under the provisions of 3 Comp. Laws 1929, § 14207, as amended by Act No. 15, Pub. Acts 1935 (Comp. Laws Supp. 1940, § 14207, Stat. Ann. § 27.902). This section says in part:
‘ ‘ The lack of an entry regarding any act, transaction, occurrence or event in any writing or record so proved may be received as evidence that no such act, transaction, occurrence or event did, in fact, take place.”
Thus we have admissible proof that Atkinson did not designate the application of the $25 payment. See observations on this subject in 14 Michigan State Bar Journal, p. 37. See, also, Gile v. Hudnutt, 279 Mich. 358. In the absence of such designation the bank had the right to apply the payments made as it saw fit. We so held in Pinconning State Bank v. Henry, 258 Mich. 44, where we stated, after citing-many authorities, that this law is well settled. The payment by Atkinson in this manner on April 18, 1933, revived his obligations and tolled the statute of limitations which had not run at the time plaintiff filed his claim.
Defendant also contends that the assignment of the Austin trust deed and the sale of the foreclosed property to Mitchell constituted a conversion by the bank of the pledged security, thereby making the bank liable to Atkinson for the reasonable value of the converted collateral. Defendant claims that, since this value was in excess of Atkinson’s debt to the bank, the conversion operated as payment of the notes which form the basis of plaintiff’s claim.
Why the bank transferred the pledged collateral to Mitchell does not definitely appear. Atkinson was not in default on his debt to the bank at the time and only the Austin debt was in default. By what method the bank transferred this collateral to Mitchell does not appear; nor does the record showr what consideration, if any, Mitchell paid the bank. The trial judge concluded that, since the bank represented to the Illinois court in the foreclosure bill that Mitchell was the sole owner for value of the Austin note and trust deed, it could not now be heard to the contrary. This resulted in the finding- that the sale of the trust deed and its foreclosure' by Mitchell effected a full and complete conveyance of title and amounted to a conversion by tbe bank of tbe pledged collateral.
In our opinion, it is not necessary to determine the precise status of Mitcbell. Tbe only question we are called upon to decide is whether the acts of tbe bank resulted in a payment of Atkinson’s obligation.
Assuming, as argued by plaintiff, that Mitcbell was tbe agent of tbe bank, then we have a situation in which a pledgee has foreclosed a note and trust deed held by it as collateral. What is tbe effect of such a foreclosure? There is nothing in tbe record to indicate any attempt in tbe foreclosure proceedings to adjudicate tbe rights and liabilities of Atkinson and tbe bank so far as their obligations to each other were concerned. No reference whatever is made in tbe foreclosure proceedings to Atkinson’s indebtedness to tbe bank. Presumably Atkinson and wife were made defendants in tbe foreclosure because the orginal mortgagors, tbe Austins, bad conveyed their equity of redemption to tbe Atkinsons. Tbe bank denies that its acts constituted a conversion and contends that tbe foreclosure was only for tbe purpose of cutting off tbe equity of redemption. It asserts a right to foreclose in this manner and to bid in tbe property at tbe foreclosure sale.
Tbe general rule as to a pledgee’s rights in this regard is stated in 76 A. L. R. at page 730:
“It appears to be generally accepted that when a pledgee bolding as collateral.security a note secured by mortgage forecloses the mortgage under tbe power of sale granted therein, or by a suit of foreclosure to which tbe pledgor is not made a party, without authority to purchase being expressly granted, then only tbe mortgagor’s equity of re demption is foreclosed; and the pledgee thereafter holds the land merely as security for his debt, or, if the land has been disposed of, he is accountable for the proceeds received on such disposition.”
This statement of law finds support in Weed v. Snow, 1 Mich. 128, and Graydon v. Church, 7 Mich. 36. See, also, 49 C. J. p. 1033 et seq.
Plaintiff argues that we should apply this rule even though the Atkinsons were made parties defendant in the foreclosure proceedings, because the bank did not foreclose the pledge but merely took the necessary steps to extinguish the equity of redemption. Hoyt v. Martense, 16 N. Y. 231. If we adopt this view of the case, it follows that when the bank, through its agent, Mitchell, foreclosed the trust deed and bid in the property at the foreclosure sale, no conversion of the Atkinson pledge was effected; the only result being to extinguish the interest of the Austins, their assignees, and other lienors. The final effect was to substitute the real estate in lieu of the trust deed as the pledged collateral. This could in no way amount to a payment of Atkinson’s obligation to the bank. It is only the substitution of one form of security for another.
If, on the other hand, we adopt the view of the defendant that there was a conversion of the pledge, we must find, as did the trial judge, that Atkinson subsequently consented thereto and waived the conversion by affirming the transaction. The record shows that on January 4, 1931, after the master’s sale to Mitchell, Atkinson gave the bank a new note for $4,600. This note' recited on its face that as collateral security for the obligation Atkinson transferred, pledged, and delivered to the bank the following property: “$7,500.00 First Mtg. J. D. & Ruth Austin Master Certificate Do Deed to be issued 2/15/32.” The acceptance of this note by the bank constituted a contract between the parties whereby the bank undertook that it either had or would produce title to the land in question when the obligation was paid. On April 5, 1931, Atkinson paid interest thereon and renewed the note under the same terms and conditions. By these payments and renewals, Atkinson acquiesced and affirmed the foreclosure transaction and contracted with the bank that the bank should hold as collateral whatever title it had obtained under the foreclosure until his obligation was satisfied. Atkinson thereby waived and abandoned whatever right he may have had to contend that the bank was liable for conversion. See 21 R. C. L. p. 692 et seq., and 65 C. J. p. 14.
Even if the element of ratification did not exist, the conversion could only create a right on the part of the Atkinson estate to set off against the bank’s claim. But it cannot be contended that such conversion amounted to payment of the Atkinson obligation. No set off was asserted by the estate.
We expressly withhold any decision upon the right of the estate to obtain a reconveyance of the property pledged by Atkinson when and if his obligation is satisfied.
The judgment entered in the circuit court is affirmed, with costs to appellee.
Sharpe, C. J., and Boyles, Chandler, North, McAllister, Wiest, and Btjtzel, JJ., concurred. | [
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Sawyer, J.
We are asked in this case to determine whether the statutory restriction on changing a child’s legal residence following a divorce, MCL 722.31, is complied with where the parties to the divorce include in their settlement agreement a blanket consent to such a change in legal residence. We hold that the statutory restrictions are not met under such circumstances because the statute requires parental consent for a specific change in legal residence and does not authorize a general consent to be granted for any future move.
The parties were divorced in 2001 pursuant to a stipulated judgment of divorce. The judgment included the following provision:
The domicile of the child shall be the state of residence of the Defendant. The parties expressly waive the requirement that they each comply with Section 11 of the “Child Custody Act of 1970”, 1970 PA91 [sic], as amended by Act No. 422 of the Public Acts of 2000, being Section 722.31 of the Michigan Compiled Laws.
In 2003, defendant and her new husband, Joe Belote, informed plaintiff that they were going to move to Arkansas. Plaintiff objected and filed a motion to correct and enforce the judgment, arguing that the quoted provision was not in compliance with the statute. The trial court granted the motion and struck the change of domicile provision from the judgment. Thereafter, the trial court held a hearing on defendant’s request to change the child’s domicile to Arkansas and denied that request.
On appeal, defendant first argues that the statute allows parties to include in the divorce judgment an agreement consenting to the change of domicile for the minor child. We disagree. MCL 722.31 provides in pertinent part:
(1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.
(2) A parent’s change of a child’s legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4), permits, the residence change. This section does not apply if the order governing the child’s custody grants sole legal custody to 1 of the child’s parents.
The ability of a parent to change a child’s residence or domicile is also restricted by MCR 3.211(C), which provides:
A judgment or order awarding custody of a minor must provide that
(1) the domicile or residence of the minor may not be moved from Michigan without the approval of the judge who awarded custody or the judge’s successor, and
(2) the person awarded custody must promptly notify the friend of the court in writing when the minor is moved to another address.
The divorce judgment in this case fails to comply with the statute. First, the divorce judgment states that the parties “waive” the requirement to comply with the statute. But nothing in the statute authorizes the parties to waive compliance with the statute. Indeed, subsection 4, in outlining the factors for the trial court to consider in granting or withholding permission to allow the change of legal residence over the other parent’s objection, directs that the child is to be “the primary focus in the court’s deliberations[.]” MCL 722.31(4). That is, the statute recognizes that parenting time is not merely a right of the parent, but also a right of a child and thus an obligation of the parent. Consequently, even if the parties’ rights could be and were waived, the child’s rights — and the parents’ obligations —were not and could not be waived by the divorce settlement. See, e.g., Van Laar v Rozema, where the Court, in the context of a child support agreement, stated, “[T]his Court has taken a dim view of agreements purporting to sign away the rights of a child ... .” Accordingly, the waiver is ineffective.
Second, even if we treat the language of the judgment as merely being a blanket consent by plaintiff to allow defendant to change the child’s legal residence at any time to any place, such a blanket consent would be contrary to the provisions of the statute. Subsection 2 of the statute clearly and unambiguously requires the other parent to consent to “the residence change.” MCL 722.31(2) (emphasis added). Use of the definite article “the” reflects a different legislative intent than the use of the indefinite article “a,” with the former reflecting a specific requirement and the latter reflecting a more general requirement. Thus, the use of the word “the,” rather than “a” or “any,” in MCL 722.31(2) reflects a legislative intent that the other parent must consent to the specific proposed change. That is, while a person can consent to “any change” without there being a specific change proposed, it is impossible to consent to “the change” without there being a specific change being proposed. In short, the only consent that can be granted under the statute is consent to a specific, identifiable change of legal residence; the statute is not complied with by a general grant of consent to any potential change that is unidentified and nonspecific.
Defendant also argues that, even if the divorce judgment failed to comply with the statute, plaintiff is too late to obtain relief from that judgment and, therefore, the provision in the judgment must be enforced as written. We disagree. But, even if we accept defendant’s argument, that has no bearing on the outcome of this dispute. That is, even if the language is not struck from the judgment, its presence has no meaning.
As discussed above, the statute requires that the other parent grant consent to a specific proposed change of legal residence. The language in the divorce judgment does not grant plaintiffs consent to a specific, identified change in legal residence; specifically, it does not grant consent to change one of the child’s legal residences to Arkansas. Therefore, it does not consti tute a grant of consent under the statute. And without a grant of consent, or permission of the trial court, the child’s legal residence may not be changed. Thus, it matters not whether the provision remains in the judgment. Ultimately, we need not decide whether the trial court could properly grant relief from the judgment or otherwise modify the divorce decree because the same result is reached either way.
Defendant looks to subsection 5 of the statute for the argument that the parties could address the issue of changing the child’s legal residence or domicile in the judgment. MCL 722.31(5) provides:
Each order determining or modifying custody or parenting time of a child shall include a provision stating the parent’s agreement as to how a change in either of the child’s legal residences will be handled. If such a provision is included in the order and a child’s legal residence change is done in compliance with that provision, this section does not apply. If the parents do not agree on such a provision, the court shall include in the order the following provision: “A parent whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the “Child Custody Act of 1970”, 1970 PA 91, MCL 722.31.”.
We agree with defendant to the extent that we read subsection 5 as authorizing the parties to reach an agreement regarding how a change in legal residence will be handled to memorialize such an agreement. Although we need not and do not decide the issue here, subsection 5 might reasonably be said to support the proposition that the divorce judgment could authorize a future, specific change and contain the details of how such a change would be handled. For example, in the case at bar, plaintiff states that, in agreeing to the settlement, he did so under the belief that defendant was contemplating a possible move to Chicago and that plaintiff had no objections to such a move because of Chicago’s proximity to Grand Rapids. It may well be that the statute is complied with if the judgment contains a consent to a specific anticipated change in legal residence that is being contemplated at the time of the settlement and the details of such a move are then set out in the judgment. But as discussed above, the consent in the judgment in this case is too vague to be in compliance with the requirements of subsection 2. Nothing in subsection 5 alters that conclusion.
Defendant also argues that the trial court erred in concluding that the language of MCR 3.211(C) should have been included in the divorce judgment and in ordering its insertion now. Specifically, defendant argues that any restriction on the change of legal residence or domicile is a matter of substantive law, not procedural law, and therefore the statute controls over the court rule. We need not decide that issue, however, because the two are not in conflict in this case. Because plaintiff has not granted his consent to the change of legal residence, even under the statute the trial court’s approval is required. Accordingly, we leave the issue whether the court rule is impermissibly restrictive for another case to determine.
Finally, defendant argues that plaintiffs motion was by way of relief from the judgment under MCR 2.612(C) and, because more than one year had passed after entry of the judgment, the request was untimely. We disagree. First, we note that because we conclude that the provision in the judgment granting blanket, nonspecific consent to a change of legal residence is ineffective to comply with the statute, its presence in the divorce judgment is meaningless. Therefore, even if defendant’s argument is correct, the error was harmless. Second, we think it fair to say that insertion of language mandated by court rule constitutes a correction of an error arising from oversight, which may be corrected at any time, including on the court’s own initiative under MCR 2.612(C)(1).
In sum, MCL 722.31 restricts the changing of a child’s legal residence absent the consent of the other parent or permission of the trial court. In the case at bar, the provision in the divorce judgment does not meet the requirements of the statute to constitute a consent to the change in legal residence because it does not identify the specific proposed change in legal residence at issue. Furthermore, the trial court withheld its permission for a change in legal residence without the other parent’s consent. Accordingly, defendant may not change the child’s legal residence to Arkansas.
Affirmed. Plaintiff may tax costs.
94 Mich App 619, 624; 288 NW2d 667 (1980).
See also Harvey v Harvey, 470 Mich 186, 192-194; 680 NW2d 835 (2004) (regardless of the agreement of the parties, the court has the ultimate responsibility for determining and protecting a child’s inherent rights with respect to custody, support, and parenting time).
See State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 147-149; 644 NW2d 715 (2002), and People v McDaniel, 256 Mich App 165, 172; 662 NW2d 101 (2003).
We caution, however, that because this is not the situation presented to us, we are not considering how detailed such a provision must be in order to comply with the specificity requirement of the statute that the other parent consent to “the residence change.” Whether a specific city must be identified, or whether it may be more general such as a county or state, is left for another case to decide. Similarly, a problem may arise in terms of the timing of the change of legal residence. That is, consent to move a one-year-old child’s legal residence to Chicago contained in a judgment of divorce may not be adequate to authorize the move if it does not occur until the child is sixteen. In such a case, the change in circumstances that would necessarily occur in the course of the intervening fifteen years might compel the conclusion that “the residence change” that occurs fifteen years after the consent is given is simply not the same as “the residence change” that was agreed to fifteen years before. Again, we need not address those details; we merely wish to make it clear that this opinion does not address such details.
The trial court also noted the problem presented by an open-ended grant of consent, without restriction concerning time or location, in its opinion. In fact, that is the context in which the trial court made its observation regarding plaintiffs intent in agreeing to the settlement and its inconsistency with joint legal custody. Defendant presents an argument regarding those comments, but we do not consider them in detail because we do not read those comments as broadly as does defendant. | [
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Griffin, P.J.
Defendant Tommy Brown appeals as of right his jury trial convictions of assault and battery, MCL 750.81; assault with intent to do great bodily harm less than murder, MCL 750.84; and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant to time served on the assault and battery conviction, 42 to 120 months of imprisonment on the assault with intent to do great bodily harm less than murder conviction, and a consecutive two-year term of mandatory imprisonment for the felony-firearm conviction. We affirm.
i
This case arises from a shooting incident in September 2003 at a house in Detroit that defendant shared with his girlfriend of ten years, Khimley Young. On the day in question, defendant and Young were at the house, along with Young’s teenage children from a previous relationship, Porshia Johnson, Codi Johnson, and Kevin Johnson, Jr., and three of Porshia Johnson’s friends, Marlin Wood-fin, Tony Johnson, and Christopher Jones.
According to prosecution witnesses, defendant and Young began to argue inside the house. As a result, Porshia Johnson left the front porch where she and her friends were talking and went into the residence to investigate. She returned to the porch in an agitated state and requested that her three friends follow her back inside the house. In the living room, they were confronted by defendant, who told the three young men to leave his house. Ms. Young, however, stated that they did not have to leave and that defendant’s name was not on the lease. At this point, defendant retreated to the back area of the house. He soon reappeared in the living room and approached Ms. Young. He asked again if his name was on the lease, and when Young replied “no,” defendant produced a handgun and shot Young in the shoulder. Next, defendant turned, pointed the gun at Porshia Johnson, and shot her in her left arm. Defendant then approached Young as she was lying on the floor, picked her up as if he was going to hug her, and shot her again in the stomach at extremely close range. Defendant then fired in the direction of Codi Johnson, wounding her in the leg. At this time, Maril Woodfin, Tony Johnson, and Christopher Jones ran from the scene. Defendant gave chase after Jones and was heard saying “I’ll kill all y’all.” Defendant eventually returned to the house, changed his shirt, and fled the scene. Shortly thereafter, the police arrived, and defendant was apprehended following a brief foot chase. All three victims — Young, Codi Johnson, and Porshia Johnson — were taken to the hospital and treated for their injuries; Khimley Young underwent emergency surgery for serious and permanent intestinal injuries.
Following his arrest, defendant was advised of his rights and signed the notification and waiver of rights form. During questioning, he admitted firing shots, but claimed that he was firing at the floor when Khimley Young jumped in the way. Defendant was charged with four counts of assault with intent to commit murder and one count of felony-firearm.
At trial, the prosecution presented testimony and evidence that the shootings were deliberate. Defendant, on the other hand, maintained that the shootings were accidental and prompted by fears for his own safety. In addition to the charged offenses, the trial court, at the request of the prosecution and over defendant’s objection, also instructed the jury on the lesser offenses of assault with intent to do great bodily harm less than murder and misdemeanor assault and battery. The jury ultimately found defendant guilty on one count of assault with intent to do great bodily harm, one count of misdemeanor assault and battery, and felony-firearm. Defendant was acquitted on the remaining two counts charging assault with intent to commit murder. He now appeals.
ii
On appeal, we address an issue of first impression: whether assault with intent to do great bodily harm less than murder is an inferior offense of assault with intent to commit murder within the meaning of MCL 768.32.
Defendant claims that the trial court committed error requiring reversal when it instructed the jury regarding the offense of assault with intent to do great bodily harm less than murder. Defendant argues, as he did before the trial court, that the instruction regarding assault with intent to do great bodily harm less than murder was improper under MCL 768.32(1) because it is a cognate offense, not a necessarily included lesser offense, of assault with intent to commit murder. We disagree.
“We review de novo a trial court’s ruling on a necessarily included lesser offense instruction.” People v Walls, 265 Mich App 642, 644; 697 NW2d 535 (2005), citing People v Lowery, 258 Mich App 167, 173; 673 NW2d 107 (2003).
MCL 768.32(1) provides:
Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense.
In People v Cornell, 466 Mich 335; 646 NW2d 127 (2002), our Supreme Court clarified the law regarding instruction on inferior offenses under MCL 768.32(1). The Cornell Court noted that the statute “was not intended to be limited only to those [inferior offenses] expressly divided into ‘degrees,’ but was intended to extend to all cases in which different grades of offenses or degrees of enormity had been recognized[,]” including misdemeanors. Id. at 353-354. The Court further explained, “[T]he word ‘inferior’ in the statute does not refer to inferiority in the penalty associated with the offense, but, rather, to the absence of an element that distinguishes the charged offense from the lesser offense Id. at 354, quoting People v Torres (On Remand), 222 Mich App 411, 419-420; 564 NW2d 149 (1997). In other words, an offense is “inferior” within the meaning of MCL 768.32(1) if “ ‘all the elements of the lesser offense have already been alleged by charging the defendant with the greater offense.’ ” Cornell, supra at 354-355, quoting Torres, supra at 419-420.
Consequently, because the plain language of the statute only permits consideration of inferior offenses, the Cornell Court concluded that instructions on “cognate” lesser offenses, which contain one element or some elements not found in the greater offense, are no longer permitted under MCL 768.32(1). Cornell, supra at 355. Instead, the jury may only be instructed on necessarily included lesser offenses, provided “the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it.” Id. at 357. See also Walls, supra.
Thus, to determine whether assault with intent to do great bodily harm less than murder is an inferior offense to assault with intent to commit murder, the elements of each offense must be compared. Both assault with intent to commit murder and assault with intent to do great bodily harm less than murder are specific intent crimes. See People v Eggleston, 149 Mich App 665, 668; 386 NW2d 637 (1986); People v Mack, 112 Mich App 605, 611; 317 NW2d 190 (1981); People v Bailey, 104 Mich App 146, 155; 304 NW2d 507 (1981). However, the requisite specific intents for these two offenses differ.
The elements of assault with intent to do great bodily harm less than murder are: “(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder.” People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997) (emphasis added). See also People v Lugo, 214 Mich App 699, 710; 542 NW2d 921 (1995); People v Harrington, 194 Mich App 424, 428; 487 NW2d 479 (1992). This Court has defined the intent to do great bodily harm as “an intent to do serious injury of an aggravated nature.” People v Mitchell, 149 Mich App 36, 39; 385 NW2d 717 (1986), citing People v Ochotski, 115 Mich 601, 608; 73 NW 889 (1898). See also People v Smith, 217 Mich 669, 673; 187 NW 304 (1922); People v Troy, 96 Mich 530, 537; 56 NW 102 (1893).
The elements of assault with intent to commit murder are: “ ‘(1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.’ ” People v Davis, 216 Mich App 47, 53; 549 NW2d 1 (1996), quoting People v Warren (After Remand), 200 Mich App 586, 588; 504 NW2d 907 (1993). See also People v Plummer, 229 Mich App 293, 305; 581 NW2d 753 (1998); People v Hoffman, 225 Mich App 103, 111; 570 NW2d 146 (1997).
It is readily apparent that both offenses share the common element of assault and are, therefore, of the same class and category. However, they are distinguishable from each other by the intent required of the actor at the time of the assault. Thus, categorization of either as an offense cognate to or necessarily included within the other must center on an analysis of these distinguishing intents. In this regard, our Supreme Court’s decision in People v Taylor, 422 Mich 554; 375 NW2d 1 (1985), is instructive. In Taylor, the Court held that a specific intent to kill must be present in order to sustain a conviction of assault with intent to murder, in contrast to a murder conviction, which can be supported by several mental states:
We explained in People v Aaron, 409 Mich 672, [714-715], 722; 299 NW2d 304 (1980), that there are several intents which can support a murder conviction. There can be an intent to kill, an intent to inflict great bodily harm, or a wanton and willful disregard of the likelihood that the natural tendency of the actor’s behavior is to cause death or great bodily harm.
However, the issue before us concerns assault with intent to murder. The prosecution correctly concedes in all three of these cases that, in order to find a defendant guilty of this crime, it is necessary to find that there was an actual intent to kill. Maher v People, 10 Mich 212, 217-218 (1862), Roberts v People, 19 Mich 401, 415-416 (1870).
“This case, so far as regards the intention to kill, is not identical with that of murder. To find the defendant guilty of the whole charge, it is true, the jury must find the intent to kill under circumstances which would have made the killing murder — and it is not denied that had death ensued in the present case, it would have been murder. But the converse of the proposition does not necessarily follow; that, because the killing would have been murder, therefore there must have been an intention to kill. Murder may be and often is committed without any specific or actual intention to kill. ... And no such specific intent is therefore necessary to be found. This difference was recognized in Maher v People, above cited.” [Id. at 567, quoting Roberts, supra at 415-416.]
See also People v Hart, 437 Mich 898 (1991); People v Gjidoda, 140 Mich App 294, 297; 364 NW2d 698 (1985); Warren v Smith, 161 F3d 358, 361 (CA 6, 1998).
Thus, the specific intent to do great bodily harm, otherwise described as the intent to do serious injury of an aggravated nature, Mitchell, supra, while sufficient to prove the crime of second-degree murder and assault with intent to do bodily harm less than murder, is less than the specific intent to kill necessary to sustain a conviction of assault with intent to commit murder. In sum, as the United States Court of Appeals for the Sixth Circuit correctly recognized in Warren, 161 F3d 361:
The second element [of assault with intent to commit murder], the intent to kill, does not equate with murder. See People v Taylor, 422 Mich 554; 375 NW2d 1, 7 [(1985)]. Thus, an intent to kill for purposes of this offense may not be proven by an intent to inflict great bodily harm or a wanton and wilful disregard of the likelihood that the natural tendency of the acts will likely cause death or great bodily harm. Id.
Because the intent to do great bodily harm less than murder is, by itself, not a sufficient mens rea for the purpose of proving the offense of assault with intent to commit murder, the question remains whether this diminished mens rea is completely subsumed in the greater mens rea of intent to kill. Mendoza, supra at 540-541. Utilizing the analysis set forth in Cornell and Mendoza, we conclude that it is, and, therefore, assault with intent to do great bodily harm less than murder is a necessarily included lesser offense of assault with intent to commit murder.
It defies common sense to suggest that a defendant could commit an assault with the intent to kill another person without also intentionally and knowingly inflicting great bodily harm. In other words, it is impossible to kill someone without intending to seriously injure that person in the process. Therefore, it is impossible to commit the offense of assault with intent to commit murder without first committing the offense of assault with intent to do great bodily harm less than murder. Because the lesser mens rea of intent to do great bodily harm is included in the greater mens rea of intent to kill in the context of assault offenses, the elements of assault with intent to do great bodily harm less than murder are completely subsumed in the offense of assault with intent to commit murder. Mendoza, supra at 532 n 3, 541-542; Cornell, supra. The offense of assault with intent to do great bodily harm is therefore a necessarily included lesser offense of assault with intent to commit murder and, as such, is an inferior offense within the meaning of MCL 768.32(1).
Our analysis is consistent with Mendoza, supra, in which our Supreme Court held that manslaughter, both voluntary and involuntary, is a necessarily included lesser offense of murder, because the absence of malice is the only element that distinguishes manslaughter from murder. Id. at 540-541. Similarly, in this case, the lack of the actual intent to kill is the only element that differentiates assault with intent to do great bodily harm from assault with intent to commit murder. Just as the lesser mens rea of manslaughter is included in the greater mens rea of murder, here, the lesser mens rea of intent to do great bodily harm is included within the greater mens rea of the intent to kill.
We further conclude that, under these particular circumstances, in response to the prosecution’s request, the trial court properly instructed the jury that, in addition to the charged offense of assault with intent to commit murder, it could also consider the offense of assault with intent to commit great bodily harm. Here, the charged offense of assault with intent to commit murder required the jury to find a disputed factual element, the actual intent to kill, that was not part of the lesser offense of assault with intent to commit great bodily harm. See Cornell, supra at 357. In addition, a rational view of the evidence in this case supports the charge of assault with intent to commit great bodily harm. Id.; Mendoza, supra at 533. Defendant admitted firing the gun, the complainants testified that defendant shot them at close range, and the injuries sustained as a result of the shooting were serious. Thus, the trial court did not err by giving the jury the requested instruction regarding assault with intent to do great bodily harm less than murder, a necessarily included lesser offense of assault with intent to commit murder, and an inferior offense within the meaning of MCL 768.32(1).
iii
Defendant also argues that he was denied a fair trial because the prosecution denigrated defense counsel and improperly shifted the burden of proof by emphasizing, during its questioning of several witnesses, defense counsel’s failure to establish that the shootings were perpetrated in self-defense. Again, we disagree.
Claims of prosecutorial misconduct are reviewed on a case-by-case basis. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). A prosecutor’s remarks must be examined in context and evaluated in light of defense arguments and the relationship they bear to the evidence admitted at trial to determine whether a defendant was denied a fair and impartial trial. Id.; People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000), abrogated in part on other grounds by Crawford v Washington, 541 US 36 (2004). Here, we conclude that, when considered in context, the questions and remarks at issue were not intended to either shift the burden of proof or to denigrate defense counsel and did not deny defendant his right to a fair trial.
Initially, we note that, although suggested as a possible basis for the shootings in both opening argument and during questioning by defense counsel during trial, self-defense was never expressly argued as justification for the shootings at issue. Rather, it was argued by defense counsel that the shootings, although prompted by a concern for safety, were accidental. Accordingly, we discern no prejudice to defendant arising from the prosecution’s emphasis of any failure by defense counsel to establish that the shootings were done in self-defense. The prosecutor’s questions did not shift to defendant the burden of proving his innocence, but properly attacked the credibility of defendant’s theory that the shootings were prompted by a fear for his safety. See People v Fields, 450 Mich 94, 106-107; 538 NW2d 356 (1995). Moreover, to the extent that the questions and comments at issue might have been misinterpreted by the jury, we find .that the curative instructions given by the trial court were sufficient to dispel any prejudicial effect. People v Bahoda, 448 Mich 261, 281; 531 NW2d 659 (1995). The jury was properly instructed that the prosecution solely possessed the burden of proof in this matter. In addition, the trial court emphasized to the jury that the lawyers’ questions, comments, and arguments were not evidence; rather they were only a means to assist the jury in understanding the evidence and legal theories of both parties. Because the trial court provided sufficient curative instructions to the jury, we find that defendant was not denied a fair trial.
Nor was defendant denied a fair trial as a result of the prosecution’s offer to adjourn the trial for fingerprinting of a shotgun found at the scene of the shooting. Defendant argues that this offer to adjourn improperly implied that the defense, should it reject the offer, had something to hide from the jury. However, we note that counsel for defendant accepted, rather than rejected, the offer to adjourn the trial for fingerprinting of the shotgun. Moreover, although the trial court refused to grant an adjournment for this purpose, it did so only after determining, on the basis of testimony offered before the jury, that the likelihood of obtaining any useful evidence from fingerprinting of the weapon was slight.
Affirmed.
BANDSTRA, J. concurred.
“Cognate offenses share several elements, and are of the same class or category as the greater offense, but the cognate lesser offense has some elements not found in the greater offense.” People v Mendoza, 468 Mich 527, 532 n 4; 664 NW2d 685 (2003). See also People v Bearss, 463 Mich 623, 627; 625 NW2d 10 (2001); People v Perry, 460 Mich 55, 61; 594 NW2d 477 (1999).
“Necessarily included lesser offenses are offenses in which the elements of the lesser offense are completely subsumed in the greater offense. ” Mendoza, supra at 532 n 3 (emphasis added). In other words, a necessarily included lesser offense is a crime for which it is impossible to commit the greater offense without first having committed the lesser, Cornell, supra at 356 (citation deleted), Bearss, supra at 627, and “if a lesser offense is a necessarily included offense, the evidence at trial will always support the lesser offense if it supports the greater.” People v Alter, 255 Mich App 194, 199; 659 NW2d 667 (2003).
MCL 750.84 provides:
Any person who shall assault another with intent to do great bodily harm, less than the crime of murder, shall be guilty of a felony punishable by imprisonment in the state prison not more than 10 years, or by fine of not more than 5,000 dollars.
MCL 750.83 provides:
Any person who shall assault another with intent to commit the crime of murder, shall be guilty of a felony, punishable by imprisonment in the state prison for life or any number of years.
“[O]ne may, of course, draw reasonable inferences to assist in making the finding of an actual intention to kill.” Taylor, supra at 568. See also People v Warren (After Remand), supra at 588. The requisite intent may be gleaned from “ ‘the nature of the defendant’s acts constituting the assault; the temper or disposition of mind with which they were apparently performed, whether the instrument and means used were naturally adapted to produce death, his conduct and declarations prior to, at the time, and after the assault, and all other circumstances calculated to throw light upon the intention with which the assault was made.’ ” Taylor, supra at 568, quoting Roberts, supra at 416.
As we have previously concluded, both offenses at issue share the remaining common element of an assault.
The converse is not true: a defendant can engage in an assault with the intent to cause great bodily injury without possessing the specific intent to kill. | [
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Kelly, P.J.
Defendants Vikki Papesh and Martin Papesh, Jr., appeal as of right the trial court’s order granting summary disposition in favor of plaintiff Shelby Township and denying defendants’ counter-motion for summary disposition. The trial court determined that the “active poultry coop” on defendants’ property constitutes a nuisance per se in violation of plaintiffs zoning regulations, and permanently enjoined defendants “from keeping, raising, harvesting and/or otherwise producing poultry or poultry products” on their property. This appeal presents the question whether defendants’ poultry operations constitute a “farm” as defined in the Right to Farm Act, (RTFA), MCL 286.471 et seq., and, if it does, whether the RTFA preempts enforcement of plaintiffs zoning ordinance. We hold that while the RTFA does preempt the enforcement of zoning ordinances that conflict with the RTFA, genuine issues of material fact preclude summary disposition in this case. Accordingly, we affirm the trial court’s denial of defendants’ counter-motion for summary disposition, reverse the trial court’s order granting summary disposition to plaintiff, and remand for further proceedings.
I. BASIC FACTS AND PROCEDURAL HISTORY
In 1995, defendants purchased 1.074 acres of property in Shelby Township. A farmhouse and two chicken coops were located on the property. The area surrounding the property was largely undeveloped. At the time of defendants’ purchase, farming was a permitted land use, but Shelby Township Zoning Ordinance § 9.10 restricted the size of farms as follows:
For the purpose of this section, the term “farm” shall mean the raising of vegetables or the keeping of small farm animals, including poultry, for any purpose, and shall have a minimum lot size of three acres.
In 1996, defendants purchased, and began raising, a flock of chickens using the preexisting chicken coops on their property. By 1998, the surrounding area began to be developed and large homes were built near and adjoining defendants’ property. Neighbors began to complain to plaintiff about defendants’ poultry operation. In 2002, plaintiff apparently sent a letter regarding a complaint about the chickens to defendants. In a written response, Vikki Papesh stated in relevant part:
We are maintaining the traditional and acceptable use of the existing poultry barns to accommodate our meat and egg chickens. Each spring I purchase approximately 50 day old chickens and raise them until they begin to lay in the early fall, and then cull the older hens to maintain production. A few turkeys are raised to provide meat. The meat is a significant and important part of our diet, and the eggs are much coveted by us and by many of our family members, friends and neighbors ....
***
We rely on our poultry, our dwarf orchard, our garden, and our hunting harvests to sustain us throughout the year and are teaching our children traditional skills and traditional values.
Tension between defendants and their neighbors regarding defendants’ poultry operations continued to mount. On June 28, 2004, several of the neighbors filed a petition with plaintiff requesting that it
investigate the active and on-going maintenance of a chicken/turkey coop in the northeast corner of the property, owned and operated by [defendants]. In addition to the nuisance factor created by the persuasive odor, the unsightly appearance and the continuing noise, there is an overriding safety concern caused by both standing water and drainage.
On July 28, 2004, plaintiff filed its complaint mirroring the complaints contained in the neighbors’ petition and alleged that the coops constituted “a negligent public nuisance, a public nuisance in fact and a nuisance per se under M.C.L. 125.224.” It also alleged that the chicken/turkey coops were not in compliance with the generally accepted agricultural and management practices (GAAMPs) of the RTFA. Plaintiff also sought injunctive relief.
Plaintiff moved for summary disposition under MCR 2.116(C)(8) and (10), asserting that defendants’ poultry operation was in violation of the ordinance. In response, defendants argued that plaintiffs claims were barred by the RTFA and that plaintiff failed to exhaust its administrative remedies because it did not file a complaint with the Michigan Department of Agriculture (MDA). Defendants further asserted that plaintiffs complaint was barred by laches and failed to state a claim. Accordingly, defendants sought summary disposition in their favor under MCR 2.116(C)(4), (8), or (10). In support of their motion, defendants submitted affidavits asserting that they had sold and were continuing to sell eggs and surplus fruits and vegetables. They also submitted a letter from the MDA stating in relevant part:
The Michigan Department of Agriculture (MDA) received a copy of your updated Manure Management System Plan, soil test results, and manure test results. The information was received at the request of MDA based on the review of your agriculture management practices and to determine conformance with the Generally Accepted Agricultural and Management Practices for Manure Management and Utilization (Practices).
Upon review of the information, MDA has determined that your poultry facility conforms to the Practices developed under the Right to Farm Act (PA 93 of 1981, as amended).
Plaintiff answered defendants’ motion for summary disposition, arguing that the RTFA was not applicable to defendants’ farm because it was neither commercial nor in compliance with the site selection GAAMPs. It argued that defendants’ affidavits should be disregarded because they conflicted with Vicky Papesh’s prior statement.
In granting summary disposition in plaintiffs favor, the trial court first determined that the poultry operation was a nuisance per se under the township ordinance prohibiting the raising of farm animals on property that was less than three acres in size. It further determined that the RTFA was inapplicable because the sales generated by defendants’ poultry operations did not “rise to the level required for the Right to Farm Act" to even apply until at the earliest the year 2000 and perhaps the year 2003.” The trial court also denied defendants’ counter-motion for summary disposition.
II. STANDARDS OP REVIEW
The trial court did not directly state the subsection of MCR 2.116(C) under which it granted summary disposition to plaintiff. However, because the court looked beyond the pleadings in deciding the motion, this Court reviews the motion as having been granted pursuant to MCR 2.116(C)(10). Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000). We review de novo a trial court’s ruling on a motion for summary disposition under MCR 2.116(C)(10). Rose v Nat’l Auction Group, 466 Mich 453, 461; 646 NW2d 455 (2002). We consider the pleadings and documentary evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. Summary disposition is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.
Whether a state statute preempts a local ordinance is a question of statutory interpretation — a question of law that this Court reviews de novo. Michigan Coalition for Responsible Gun Owners v City of Ferndale, 256 Mich App 401, 405; 662 NW2d 864 (2003). As our Supreme Court has stated:
When interpreting statutory language, our obligation is to ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute. When the Legislature has unambiguously conveyed its intent in a statute, the statute speaks for itself, and judicial construction is not permitted. Because the proper role of the judiciary is to interpret and not write the law, courts simply lack authority to venture beyond the unambiguous text of a statute. [Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002) (citations omitted).]
III. ANALYSIS
Defendants first argue that the trial court erred in denying their motion for summary disposition because their operations were protected by the RTFA. Alternatively, they argue that the trial court erred by granting summary disposition to plaintiff under MCR 2.116(0(10) because there was at least a genuine issue of material fact about whether their poultry-operation was protected by the RTFA. We find that, on the basis of this record, genuine issues of material fact exist that preclude summary disposition for either party.
A. THE RIGHT TO FARM ACT
This Court has previously determined that “[t]he RTFA was implemented to protect farmers from nuisance lawsuits.” Travis v Preston (On Rehearing), 249 Mich App 338, 342; 643 NW2d 235 (2002). This Court has also noted:
The Legislature undoubtedly realized that, as residential and commercial development expands outward from our state’s urban centers and into our agricultural communities, farming operations are often threatened by local zoning ordinances and irate neighbors. It, therefore, enacted the Right to Farm Act to protect farmers from the threat of extinction caused by nuisance suits arising out of alleged violations of local zoning ordinances and other local land use regulations as well as from the threat of private nuisance suits. [Northville Twp v Coyne, 170 Mich App 446, 448-449; 429 NW2d 185 (1988).]
In particular, the RTFA, provides:
(1) A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture. Generally accepted agricultural and management practices shall be reviewed annually by the Michigan commission of agriculture and revised as considered necessary. [MCL 286.473.]
Thus, “[u]nder the RTFA, a fariri or farming operation cannot be found to be a nuisance if it meets certain criteria, such as conforming to ‘generally accepted agricultural management practices.’ ” Travis, supra at 342-343 (citations omitted).
The RTFA defines “farm,” “farm operation,” and “farm product” in MCL 286.472:
(a) “Farm” means the land, plants, animals, buildings, structure, including ponds used for agricultural and aquacultural activities, machinery, equipment, and other appurtenances used in the commercial production of farm products.
(b) “Farm operation” means the operation and management of a farm or a condition or activity that occurs at any time as necessary on a farm in connection with the commercial production, harvesting, and storage of farm products ....
(c) “Farm product” means those plants and animals useful to human beings produced by agriculture and includes, but is not limited to, forages and sod crops, grains and feed crops, field crops, dairy and dairy products, poultry and poultry products ... or any other product which incorporates the use of food, feed, fiber, or fur, as determined by the Michigan commission of agriculture.
Both the definitions for “farm” and “farm operation” employ the terms “farm product” and “commercial production.” However, while the RTFA defines the term “farm product,” it does not define “commercial production.” Thus, to discern the meaning of these provisions, we must first determine what is meant by the phrase “commercial production.” Words that are not defined by a statute will be given their plain and ordinary meanings, and a court may consult dictionary definitions when ascertaining those meanings. Koontz, supra at 312. “Commercial” is defined as “produced, marketed, etc., with emphasis on salability, profit, or the like,” and “production” is defined as “the act of producing; creation or manufacture.” Random House Webster’s College Dictionary (1992). Thus, “commercial production” is the act of producing or manufacturing an item intended to be marketed and sold at a profit.
According to the plain language of the RTFA, a farm or farming operation cannot be found to be a nuisance if it is commercial in nature and conforms to the GAAMPs. MCL 286.472(b); 286.473(1); Belvidere Twp v Heinze, 241 Mich App 324, 331; 615 NW2d 250 (2000). The RTFA describes GAAMPs as “those practices as defined by the Michigan commission of agriculture.” MCL 286.472(d). Whether a farm conforms to the GAAMPs is decided according to policies adopted by the Michigan Commission of Agriculture. Richmond Twp v Erbes, 195 Mich App 210, 221; 489 NW2d 504 (1992); MCL 286.473(1).
Applying the RTFA to defendants’ poultry operations, it is clear that the poultry raised on defendants’ property are “farm products” because they are useful to human beings and produced by agriculture. The raising of poultry on defendants’ property constitutes a “farm operation” because it involves the “harvesting of farm products.” However, if defendants’ farm is to be protected by the RTFA, it must be also be engaged in breeding, raising, and selling poultry for commercial purposes as well as be in compliance with the appropriate GAAMPs as determined by the commission. Upon review of the limited record in the lower court, we cannot find, as a matter of law, that defendants’ poultry operations were either commercial in nature or in compliance with the applicable GAAMPs.
In support of its motion for summary disposition, plaintiff pointed to the 2002 letter signed by Vikki Papesh and sent to plaintiff. In particular, Vikki Papesh indicated in the letter that a few turkeys were being raised on the property to provide meat that “is a significant and important part of our diet” and that eggs laid by the chickens on the property “are much coveted by us and by many of our family members, friends and neighbors . . . .” She further wrote, “We rely on our poultry, our dwarf orchard, our garden, and our hunting harvests to sustain us throughout the year and are teaching our children traditional skills and traditional values.” Plaintiff submits that the clear inference from these statements, coupled with the lack of any direct reference to commercial activity such as selling meat or eggs from the poultry for profit, is that defendants were not engaged in a commercial enterprise; rather, they were merely raising poultry to be consumed by their own family. Plaintiff contends that these statements, viewed in a light most favorable to plaintiff, could reasonably support a finding that the poultry operation was not in any part a commercial enterprise and thus was not a “farm” or “farm operation” within the meaning of MCL 286.473(1).
To the contrary, we conclude that defendants submitted evidence that could support a finding that the poultry operation was at least partially commercial in nature. In particular, defendants asserted in separate affidavits that they were “currently selling an average of forty[-]two dozen eggs per week and the expected annual gross income for the fiscal year from September 2004-August 2005 is approximately $3,500.” Plainly, if credited as true by a fact-finder, such testimony from defendants would support the opposite conclusion, i.e., that the poultry operation was at least in part a commercial operation that could potentially be protected under the RTFA.
Plaintiff argues that the statements in defendants’ affidavits indicating there was a commercial aspect to the poultry operation should be disregarded because they attempt to create a genuine issue of material fact by contradicting Vikki Papesh’s statements in the 2002 letter. However, the cases plaintiff cites in support of its assertion that the statements in the affidavits should be disregarded are distinguishable from this case because each of those cases involved disregarding an affidavit to the extent that it attempted to contradict answers given by a party or other witness during deposition testimony. Obviously, Vikki Papesh’s statements in the letter are not sworn testimony. We decline to extend the general rule against contradicting deposition testimony with an affidavit in the summary disposition context to prevent a party from contradicting statements that were not made under oath or as part of legal proceedings.
Moreover, the statements in the affidavits regarding a commercial aspect to the poultry operation do not directly contradict the statements in the letter. Further, the.letter was sent in 2002, but plaintiff did not file its complaint until 2004. It is possible that, even if the poultry operation on defendants’ property had no commercial aspect in 2002, defendants expanded it to involve a commercial operation by the time of their affidavits in 2004. Because the evidence produced in the trial court is capable of supporting different conclusions and creates a question of fact about whether defendants’ poultry operation was commercial, the trial court erred in granting summary disposition to plaintiff.
Additionally, there is a genuine issue of fact concerning whether defendants’ poultry operations complied with the applicable GAAMPs. Plaintiff submits that it was entitled to summary disposition on this ground because the poultry operation violated the site selection GAAMPs for livestock production facilities. But it is unclear from this record whether the site selection GAAMPs even apply to defendants. Site selection GAAMPs were promulgated in 2000 and only apply to new and expanding farms. If defendants were operating a farm in a manner protected by the RTFA before 2000, the site selection GAAMPs would not be applicable. Additionally, they define livestock production facilities as “all facilities where farm animals... are confined with a capacity of 50 animal units or greater and/or the associated manure storage facilities.” It appears to be undisputed that the number of animals kept as part of defendants’ poultry operation was less than fifty animal units.
We also reject defendants’ argument that they have established as a matter of law that their operation complies with all applicable GAAMPs. In support of this assertion, defendants rely on the MDA’s letter, in particular, its statement that the “MDA has determined that your poultry facility conforms to the Practices developed under the [RTFA].” However, read in context, this statement follows an introduction explaining that it was based on a review of whether the operation complied with the GAAMPs for manure management and utilization. Thus, we conclude that the MDA indicated with this statement that the poultry operation complied with that particular GAAMi] not as a certification of compliance with all applicable GAAMPs.
In sum, the trial court erred in granting summary disposition in plaintiffs favor because it did not establish that it was entitled to judgment as a matter of law. However, the trial court did not err in denying summary disposition to defendants. On the basis of this record, we conclude that factual issues remain regarding whether the poultry operation is at least in part commercial in nature and whether it is in compliance with the GAAMPs. Accordingly, we remand for further proceedings. To conserve judicial resources, we next address the other issues raised in this appeal that will affect the proceedings on remand.
B. PREEMPTION
Defendants argue that, if their poultry operation is commercial in nature and in compliance with the relevant GAAMPs, the RTFA preempts plaintiffs ordinance. Plaintiff argues to the contrary that, irrespective of the farm’s commercial nature or compliance with the GAAMPs, the RTFA is inapplicable because, at the time defendants initiated their poultry operation, farming was prohibited on property of less than three acres.
State law preempts a municipal ordinance where the ordinance directly conflicts with a state statute or the statute completely occupies the field that the ordinance attempts to regulate. Rental Prop Owners Ass’n of Kent Co v Grand Rapids, 455 Mich 246, 257; 566 NW2d 514 (1997). A direct conflict exists when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits. People v Llewellyn, 401 Mich 314, 322 n 4; 257 NW2d 902 (1977).
The RTFA, specifically MCL 286.474(6), provides:
Beginning June 1, 2000, except as otherwise provided in this section, it is the express legislative intent that this act preempt any local ordinance, regulation, or resolution that purports to extend or revise in any manner the provisions of this act or generally accepted agricultural and management practices developed under this act. Except as otherwise provided in this section, a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act. [Emphasis added.]
The language of the statute is unambiguous. It clearly states that a local ordinance is preempted when it purports to extend or revise the RTFA or the GAAMPs. It further plainly states that a local unit of government shall not enforce an ordinance that conflicts in any manner with the RTFA or the GAAMPs. It is undisputed that plaintiffs Ordinance § 9.10(A), which was in force when defendants bought the property in 1995, prohibited raising poultry on a parcel smaller than three acres. It is also undisputed that the property did not exceed 1.074 acres. The relevant GAAMPs provide for the proper management practices for poultry farming, including, but not limited, to facilities, manure management, and care of chickens and turkeys. Plaintiff has not produced, and we are unable to find, any GAAMP that limits poultry farming to property consisting of more than three acres. As we concluded above, if defendants’ farm is commercial in nature and in compliance with the GAAMPs, it is a farm operation protected by the RTFA. The ordinance conflicts with the RTFA to the extent that it allows plaintiff to preclude a protected farm operation by hmiting the size of a farm.
Further, as we previously noted, MCL 286.474(6) expressly provides that “a local unit of government shall not. .. enforce an ordinance that conflicts in any manner with this act. . . .” (Emphasis added). We cannot imagine any clearer expression of legislative intent. The plain language of the RTFA precludes enforcement of an ordinance that conflicts with the RTFA. Although plaintiff argues that application of the RTFA under these circumstances will prevent local municipalities from “get[ting] their arms around” farms operating in existing or developing residential areas, the fact that the statute appears to be unwise or unfair to plaintiff is insufficient to permit judicial construction. The wisdom of a statute is for the determination of the Legislature, and the law must be enforced as written. Smith v Cliffs on the Bay Condo Ass’n, 463 Mich 420, 430; 617 NW2d 536 (2000). “A court may not inquire into the knowledge, motives, or methods of the Legislature,” Fowler v Doan, 261 Mich App 595, 599; 683 NW2d 682 (2004), and may not impose a construction on a statute on the basis of a policy decision different from that chosen by the Legislature, Robertson v DaimlerChrysler Corp, 465 Mich 732, 752; 641 NW2d 567 (2002). Accordingly, the RTFA no longer allows township zoning ordinances to preclude farming activity that would otherwise be protected by the RTFA. Rather, any township ordinance, including a zoning ordinance, is unenforceable to the extent that it would prohibit conduct protected by the RTFA.
C. LACHES
Defendants also argue that plaintiffs attempt to enjoin them from continuing the poultry operation is barred by the equitable doctrine of laches. Laches may apply to bar an attempt to abate a zoning ordinance violation. Yankee Springs Twp v Fox, 264 Mich App 604, 612; 692 NW2d 728 (2004). However, it would be premature, at this juncture, for us to consider whether plaintiffs attempt to abate the poultry operation is barred by the doctrine of laches. By entering judgment in plaintiffs favor, the trial court must have implicitly concluded that plaintiffs claim was not barred by the doctrine of laches as argued by defendants below. But the trial court did not articulate any factual findings to support such a conclusion. This is critical because, while a trial court’s decisions regarding application of the equitable doctrine of laches are reviewed de novo, its findings of fact supporting such a decision are reviewed for clear error. Id. at 611. Application of the doctrine of laches requires a passage of time and a change in condition that would make inequitable the enforcement of a claim against a defendant. Id. at 612. In this regard, defendant has the burden of proving that lack of due diligence by plaintiff prejudiced defendant. Id. Without findings of fact regarding when plaintiff was first placed on notice of the poultry operation and the effect on defendants of being forced to discontinue this activity, we cannot determine whether defendants would be prejudiced so that it would be inequitable to allow plaintiff to enforce a claim to enjoin the poultry operation. Accordingly, we direct the trial court to address the issue of laches on remand if it is necessary to do so in order to properly resolve this case.
D. ADMINISTRATIVE REMEDIES
Defendants further argue that they were entitled to summary disposition because plaintiff failed to exhaust its administrative remedies under the RTFA by filing a complaint with the MDA regarding the poultry operation. Whether a court has subject-matter jurisdiction is a question that this Court reviews de novo. Papas v Gaming Control Bd, 257 Mich App 647, 656-657; 669 NW2d 326 (2003). We reject this argument because it presupposes that defendants’ activities were clearly protected by the RTFA. However, as set forth above, there is a genuine issue of material fact regarding whether defendants were engaged in commercial activity as required for the RTFA to apply. Thus, defendants could not have been entitled to summary disposition based on plaintiff’s failure to exhaust administrative remedies under the RFTA given that it has not been definitively established that the RTFA applies to the poultry operation at issue.
E. FAILURE TO STATE A CLAIM
Finally, defendants argue that the trial court erred by failing to grant their motion for summary disposition under MCR 2.116(C)(8) on the ground that plaintiff failed to state a claim on which relief could be granted. We disagree. In considering whether a party is entitled to summary disposition under MCR 2.116(C)(8), we assume that all factual allegations in the nonmoving party’s pleadings are true and decide if there is a legally sufficient basis for the claim. Salinas v Genesys Health Sys, 263 Mich App 315, 317; 688 NW2d 112 (2004). Plaintiffs complaint alleged in part that a poultry coop on defendants’ property constituted a nuisance per se under MCL 125.224. It is undisputed that the township zoning ordinance would prohibit the poultry operation if defendants are not protected under the RTFA. If, as a result of further factual development or resolution by trial or otherwise of disputed factual issues, defendants ultimately prevail on remand in their argument that the relevant township ordinance is preempted by the RFTA, this would not mean that plaintiff failed to state a claim for the purposes of MCR 2.116(C)(8), but that defendants established a meritorious defense to the claim.
We reverse the trial court’s order granting summary disposition in plaintiffs favor, affirm the order denying defendants’ counter-motion for summary disposition, and remand this case for further proceedings consistent with this opinion. We do not retain jurisdiction.
It is undisputed that there were two poultry coops on defendants’ property.
Although the parties repeatedly refer to this complaint, it is not contained in the lower court record.
At oral argument, plaintiff conceded that its nuisance argument was limited to a “nuisance per se” theory. Use of land in violation of an ordinance is a nuisance per se. MCL 125.587; High v Cascade Hills Country Club, 173 Mich App 622, 629; 434 NW2d 199 (1988).
Contrary to the trial court’s determination that the sales generated by defendants’ poultry operation did not “rise to the level required for the right to farm act to even apply,” there is no minimum level of sales that must be reached before the RTFA is applicable.
In support of its argument, plaintiff cites Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 254-257; 503 NW2d 728 (1993); Griffith v Brant, 177 Mich App 583, 587-588; 442 NW2d 652 (1989); Peterfish v Frantz, 168 Mich App 43, 54-55; 424 NW2d 25 (1988).
Plaintiff further asserts that the trial court considered testimony by Vikki Papesh at the motion hearing and considered her credibility in determining whether to grant summary disposition. Plaintiff suggests that we consider this a factual finding and review it for clear error. We reject this argument as a matter of law because a trial court may not make factual findings in deciding a summary disposition motion. Jackhill Oil Co v Powell Production, Inc, 210 Mich App 114, 117; 532 NW2d 866 (1995).
According to the GAAMPs, fifty animal units would be 5,000 laying hens or broilers or 2,750 turkeys.
This conclusion does not leave a local government without recourse if it has public safety concerns that it seeks to address by ordinance. MCL 286.474(7) provides:
A local unit of government may submit to the director a proposed ordinance prescribing standards different from those contained in generally accepted agricultural and management practices if adverse effects on the environment or public health ■will exist within the local unit of government. | [
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Zahra, J.
In this insurance case, defendant insurer, Prime Insurance Syndicate, Inc. (Prime), appeals as of right the trial court’s entry of judgment in favor of plaintiff insured, Royal Property Group, LLC (Royal), for $228,729.84. The significant issues in this case are (1) whether the insurance policy is ambiguous in regard to the method of valuation used to determine coinsurance liability and (2) whether a coinsurance clause that determines an insured’s coinsurance liability on the basis of the replacement cost value (RCV) of the property is against public policy where an insurer’s liability is limited to the actual cash value (ACV) of the loss. Reading the policy as a whole, we hold that there is but one reasonable interpretation of the policy. The insured’s coinsurance obligation is based on the RCV of the property and the insurer’s limit of liability is based on the ACV of the loss. We further hold that Michigan’s public policy does not prohibit an insurer from issuing a policy of insurance that measures an insured’s coinsurance liability using the RCV of the property while limiting its liability to the ACV of the loss. We reverse the trial court’s order granting Royal partial summary disposition, and remand with instructions that summary disposition be granted to Prime.
I. BASIC FACTS AND PROCEEDINGS
Royal, through its agent, defendant Whitcomb & Company, Inc., applied for commercial property insurance from Prime to cover three apartment buildings that Royal owned and operated in the city of Detroit. The coverage for “Building 2” is at issue in this case. In regard to Building 2, the policy application contains the following section:
SUBJECT OF INSURANCE AMOUNT COINS % VALUATION CAUSES OF LOSS INFLATION GUARD % DEDUCTIBLE FORMS AND CONDITIONS TO APPLY
Bldg 600,000 80 ACV Special 1500 Excl theft
Loss of Rents 156,000 12 months ACV Special 1500 Excl theft
Prime later issued a policy to Royal. The declarations page of the policy contains a section titled, “COVER AGES PROVIDED — INSURANCE AT THE DESCRIBED PREMISES FOR COVERAGES FOR WHICH A LIMIT OF INSURANCE IS SHOWN,” which provides in regard to Building 2:
PREM. NO. BLDG. NO. COVERAGE LIMIT OF INSURANCE COVERED CAUSES OF LOSS COINSURANCE % RATES
2 1 BUILDING 600,000 BROAD-ACV 80 .81
2 1 BUS. INC. 156,000 BROAD-ACV
1/3 .81
In a section titled, “ADDITIONAL CONDITIONS,” the policy states:
The following conditions apply in addition to the Coverage Conditions and the Loss Conditions.
1. Coinsurance
A Coinsurance percentage of 80% applies to this policy.
a. We will not pay the full amount of any loss if the replacement cost value of Covered Property at the time of loss multiplied by the 80% Coinsurance percentage shown for it in the Declarations is greater than the limit of insurance for the property.
Instead we will determine the most we -will pay using the following steps:
(1) multiply the replacement cost value of covered property at the time of loss by the coinsurance percentage;
(2) divide the limit of insurance of the property by the figure determined in step (1);
(3) multiple the total amount of loss, before the application of any deductible, by the figure determined in step (2); and
(4) subtract the deductible from the figure determined in step (3).
We will pay the amount determined in step (4) or the limit of insurance, whichever is less. For the remainder, you will either have to rely on other insurance or absorb the loss yourself.
Three detailed examples are provided that show how the coinsurance clause operates when the sum of the RCV of the covered property and the coinsurance percentage is more than (underinsurance), less than (over-insurance), and equal to (adequate insurance) the amount of the policy limit.
Building 2 was destroyed in a fire on April 16, 2002. At the time of the fire, Building 2 had an ACV of between $814,270 and $1,280,769, and an RCV of $3,659,396. Prime paid out $372,270.16 under the policy. Royal disputed the amount of the payment and claimed that Prime reduced its payment by improperly applying the coinsurance clause.
Royal filed this action to recover the policy limit. In Royal’s view, the policy application and the declarations page of the policy require the coinsurance clause be construed to state “actual cash value” instead of “replacement cost value.” Under this formulation, the ACV of the loss would exceed the policy limit of $600,000 and would entitle Royal to the policy limit.
Prime moved for partial summary disposition, arguing that it had properly applied the coinsurance clause to reduce Royal’s recovery. After holding a hearing, the trial court concluded that the notations on the declarations page of the policy rendered the policy ambiguous in regard to coinsurance liability. The trial court denied Prime’s motion for summary disposition and ordered that summary disposition be issued in favor of Royal. The trial court subsequently granted Royal’s motion for entry of final judgment and ordered that Prime pay Royal an additional $228,729.84. This appeal ensued.
II. OPERATION OF THE COINSURANCE CLAUSE
A. STANDARD OF REVIEW
“This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition is appropriate under MCR 2.116(C)(10) when, “[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). Accordingly, when deciding a motion under MCR 2.116(C)(10), this Court reviews “the entire record in the light most favorable to the party opposing the motion, including affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties.” Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004).
Further, resolution of this issue depends on interpretation of the insurance policy, which is also reviewed de novo. Wilkie v Auto-Owners Ins Co, 469 Mich 41, 47; 664 NW2d 776 (2003). “Similarly, whether contract language is ambiguous is a question of law that we review de novo.” Klapp v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003), citing Farm Bureau Mut Ins Co v Nikkei, 460 Mich 558, 563; 596 NW2d 915 (1999).
B. ANALYSIS
“An insurance policy is much the same as any other contract. It is an agreement between the parties in which a court will determine what the agreement was and effectuate the intent of the parties.” Auto-Owners Ins Co v Churchman, 440 Mich 560, 566; 489 NW2d 431 (1992), citing Eghotz v Creech, 365 Mich 527, 530; 113 NW2d 815 (1962). “[I]nsurance polices are subject to the same contract construction principles that apply to any other species of contract.” Rory v Continental Ins Co, 473 Mich 457, 461; 703 NW2d 23 (2005) (emphasis in original). “ ‘The primary goal in the construction or interpretation of a contract is to honor the intent of the parties[.]’ ” Klapp, supra at 473, quoting Rasheed v Chrysler Corp, 445 Mich 109, 127 n 28; 517 NW2d 19 (1994). “[T]he language of the parties’ contract is the best way to determine what the parties intended.” Klapp, supra at 476.
Accordingly, an insurance contract should be read as a whole and meaning should be given to all terms. Wilkie, supra at 50 n 11. The policy application, declarations page of policy, and the policy itself construed together constitute the contract. Hall v Equitable Life Assurance Society of the United States, 295 Mich 404, 408; 295 NW 204 (1940). The contractual language is to be given its ordinary and plain meaning. Id. at 408. An insurance contract must be construed so as to give effect to every word, clause, and phrase, and a construction should be avoided that would render any part of the contract surplusage or nugatory. Klapp, supra at 467. “[Ujnless a contract provision violates law or one of the traditional [contract] defenses to the enforceability of a contract applies, a court must construe and apply unambiguous contract provisions as written.” Rory, supra at 461. “[T]he judiciary is without authority to modify unambiguous contracts or rebalance the contractual equities struck by the contracting parties because fundamental principles of contract law preclude such subjective post hoc judicial determinations of ‘reasonableness’ as a basis upon which courts may refuse to enforce unambiguous contractual provisions.” Id. A provision in a contract is ambiguous if it irreconcilably conflicts with another provision, or when it is equally susceptible to more than a single meaning. Lansing Mayor v Pub Service Comm, 470 Mich 154, 165 n 6, 166; 680 NW2d 840 (2004).
“The term ‘coinsurance’ means a relative division of the risk between the insurer and the insured.” 15 Couch, Insurance 3d, § 220:3, p 220-8. “Coinsurance clauses are provisions in insurance policies that require the insured to maintain coverage to a specified value of the property, and stipulate that, upon his or her failure to do so, he or she becomes a coinsurer and must bear his or her proportionate part of the loss.” Id. at 220-9. As one court explained, “That [coinsurance] clause does not undertake to define the nature of the insurer’s liability; its role, instead, is simply to decrease that liability if the demand specified in the clause is not met.” Carley Capital Group v Fireman’s Fund Ins Co, 278 US App DC 143; 877 F2d 78, 82 (1989).
The crux of Royal’s claim is that the parties intended that the coinsurance be based on the ACV of the property. In support, Royal cites the portions of the policy application and the declarations page of the policy, claiming that they suggest that the coinsurance percentage is based on the ACV of the property. Royal adds that nowhere on the policy application or the declarations page is there any indication that coinsurance would be determined by the RCV of the property. Royal then argues that because the coinsurance clause in the policy states that coinsurance is applied using the RCV of the property, it irreconcilably conflicts with the policy application and the declarations page. Royal concludes that this conflict presents an ambiguity that must be interpreted in its favor because (1) the entries on the policy application and the declarations page are not printed and, thus, control over the printed coinsurance clause contained in the policy, see Martin v Ohio Cas Ins Co, 9 Mich App 598, 601-602; 157 NW2d 827 (1968), and (2) ambiguities in an insurance policy are construed in favor of the insured (the rule of contra proferentem), see Klapp, supra at 470-471.
The trial court concluded that the policy was ambiguous with respect to coinsurance because the declara tions page of the policy conflicted with the coinsurance clause. The trial court did not mention the policy application. The trial court’s conclusion is predicated on a finding that the declarations page states that coinsurance would be based on the ACV of the property. However, nowhere on the declarations page does it state that the 80 percent coinsurance requirement would be based on the ACV of the property. The only information related to coinsurance is the entry “80” under the heading “Coinsurance Royal argues that the “Broad-ACV” entry under “Covered Causes of Loss” heading on the declarations page of the policy shows that coinsurance would be determined on an ACV basis. However, the “Broad-ACV” entry clearly refers to the portion of the policy entitled, “Causes of Loss — Broad Form.” The form begins by stating that “[w]hen Broad is shown in the Declarations, Covered Causes of Loss means the following. . .. ” The form then delineates several causes of accidents covered and not covered by the policy. Nothing in this form refers to coinsurance, and, thus, there is no basis to infer that the declarations page indicates that the parties intended coinsurance be based on ACV Therefore, we conclude that the trial court erred in finding the declarations page expressed that coinsurance would be determined on an ACV basis.
Royal also claims that the policy application indicates that coinsurance would be determined on the basis of the ACV of the property. Again, however, the only information related to coinsurance is the entry “80” under the heading “Coins Royal specifically argues that the “ACV” entry under the “Valuation” heading.of the policy application shows that coinsurance would be calculated on an ACV basis. However, the headings and respective entries in this section are separated by columns, and there is no indication on the policy application that the “ACV” entry supplements the “Coins %” heading. Accordingly, there is no basis to assume that the parties intended that coinsurance would be based on the ACV of the property. In sum, we find that Royal’s interpretation of the policy application and the declarations page of the policy is unduly strained. Radenbaugh v Farm Bureau Gen Ins Co of Michigan, 240 Mich App 134, 138; 610 NW2d 272 (2000), citing Hosking v State Farm Mut Automobile Ins Co, 198 Mich App 632, 633-634; 499 NW2d 436 (1993).
Further, we conclude that Royal’s construction of the policy overemphasizes the policy application and the declarations page of the policy. Our Supreme Court has not specifically addressed the weight to be given an insurance policy application or the declarations page of an insurance policy. However, we agree with a recent opinion by the Illinois Supreme Court, which stated:
The declarations page is but one piece of the insuring agreement. Although it contains important information specific to the policyholder, the declarations page cannot address every conceivable coverage issue. Thus, some uncertainty could arise if the declarations page is read in isolation from the rest of the agreement. [Hobbs v Hartford Ins Co of the Midwest, 214 Ill 2d 11, 23; 823 NE2d 561 (2005), citing Zurich Ins Co v Raymark Industries, Inc, 118 Ill 23, 50; 514 NE2d 150 (1987) (citation omitted).]
We also extend this rationale to a policy application that is deemed part of the insurance policy. “ ‘Any provision of a lengthy document is bound to be ambiguous in the sense that it creates questions that can be answered only by reference to other portions of the document.’ ” Hobbs, supra at 23, quoting In re Estate of Striplin, 347 Ill App 3d 700, 706; 807 NE2d 1255 (2004). Here, the same can be said of the declarations page and the policy application. They are only parts of the insurance policy, and should not be read in isolation from the policy because uncertainty or ambiguity could arise. Thus, we agree with the observation of the Supreme Court of Illinois that “[t]his is precisely why an insurance policy must be interpreted from an examination of the complete document.” Hobbs, supra at 23, citing Zurich, supra.
In regard to coinsurance, we conclude that there is no ambiguity. Neither the policy application nor the declarations page of the policy addresses the operation of coinsurance, except to indicate a percentage that would be integrated in the coinsurance clause. The coinsurance clause, however, is very specific, providing in part:
We will not pay the full amount of any loss if the replacement cost value of Covered Property at the time of loss multiplied by the 80% Coinsurance percentage shown for it in the Declarations is greater than the limit of insurance for the property.
This Court is required to read contracts as a whole, giving harmonious effect, if possible, to each word and phrase. Wilkie, supra at 50 n 11, citing Singer v Goff, 334 Mich 163, 168, 54 NW2d 290 (1952). Also, specific provisions normally override general ones. Sobel v Steelcraft Piston Ring Sales, Inc, 294 Mich 211, 219; 292 NW 863 (1940); Haefele v Meijer, Inc, 165 Mich App 485, 498; 418 NW2d 900 (1987), remanded on other grounds 431 Mich 853 (1988).
Here, the coinsurance clause specifically addresses the operation of coinsurance. Further, the language of the coinsurance clause is consistent with the policy application and the declarations page of the policy. The coinsurance percentage listed in each of those documents, 80 percent, is the same percentage stated in the coinsurance clause. Therefore, because the coinsurance clause specifically addresses the operation of coinsurance in a manner consistent with the policy application and declarations page, the clause must be enforced as written. Rory, supra. The trial court improperly created an ambiguity by accepting Royal’s strained interpretation of the policy application and the declarations page and then finding Royal’s interpretation inconsistent with the coinsurance clause within the policy. VanDyke v League Gen Ins Co, 184 Mich App 271,275; 457 NW2d 141 (1990), citing Farm Bureau Mut Ins Co of Michigan v Hoag, 136 Mich App 326, 332; 356 NW2d 630 (1984).
Royal’s claim on appeal suggests that it was led to believe that coinsurance would only require them to insure the property to 80 percent of its ACV However, such a claim does not require the policy to be interpreted; rather, the claim requires the policy to be reformed. Neither the litigants nor the trial court raised the issue of reformation. This Court need not consider issues that have not been presented or preserved. Caldwell v Chapman, 240 Mich App 124, 132; 610 NW2d 264 (2000); Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234, 234 n 23; 507 NW2d 422 (1993).
III. PUBLIC POLICY
Royal argues that this Court should affirm the trial court’s ruling because the coinsurance clause violates Michigan public policy. We disagree.
A. STANDARD OF REVIEW
Whether an insurance contract violates public policy is a question of law that this Court reviews de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
B. ANALYSIS
“A contract that violates Michigan’s public policy is unenforceable.” Pitsch v Blandford, 264 Mich App 28, 31; 690 NW2d 120 (2004), citing Morris & Doherty, PC v Lockwood, 259 Mich App 38, 59-60; 672 NW2d 884 (2003), citing Evans & Luptak, PLC v Lizza, 251 Mich App 187, 196; 650 NW2d 364 (2002). As stated in Terrien v Zwit, 467 Mich 56, 66-67; 648 NW2d 602 (2002):
In defining “public policy,” it is clear to us that this term must be more than a different nomenclature for describing the personal preferences of individual judges, for the proper exercise of the judicial power is to determine from objective legal sources what public policy is, and not simply assert what such policy ought to be on the basis of the subjective views of individual judges. This is grounded in Chief Justice Marshall’s famous injunction to the bench in Marbury v Madison, 5 US (1 Cranch) 137, 177; 2 L Ed 60 (1803), that the duty of the judiciary is to assert what the law “is,” not what it “ought” to be. [Emphasis in original.]
For this reason,
“[c]ourts must proceed with caution in determining what exactly constitutes Michigan’s ‘public policy,’ and not merely impose its [sic] belief of what public policy should be. In other words, Michigan’s ‘public policy’ must be clearly apparent in ‘our state and federal constitutions, our statutes, and the common law,’ as well as our ‘administrative rules and regulations, and public rules of professional conduct[.]’ ” [Pitsch, supra at 31 quoting Morris & Doherty, PC, supra at 54-55 (citations omitted).]
In other words, “[t]he public policy of Michigan is not merely the equivalent of the personal preferences of a majority of this Court; rather, such a policy must ultimately be clearly rooted in the law. There is no other proper means of ascertaining what constitutes our public policy.” Terrien, supra at 67.
“Coinsurance clauses are, generally, held enforceable in the absence of statutory prohibition to the contrary.” 44 Am Jur 2d, Coinsurance Clauses, § 1499, p 770; see also anno: Validity, construction, and effect of insurance policy provision requiring insured to maintain coverage to specified value of property (coinsurance clause) 43 ALR3d 566, pp 569-570. No Michigan statute currently prohibits coinsurance, and our Supreme Court even “dismiss[ed] [a] plaintiffs claim that there is something vicious about coinsurance,” stating that “[i]ts legality is no longer a debatable question...” as it “has been authorized by law for over 40 years....” Masonic Temple Ass’n of Grand Rapids v Michigan Fire & Marine Ins Co, 323 Mich 662, 671; 36 NW2d 317 (1949), citing Fine Arts Corp v Kuchins Furniture Mfg Co, 269 Mich 277; 257 NW 822 (1934). Thus, coinsurance clauses generally do not violate Michigan public policy.
Royal argues, however, that this specific coinsurance clause violates public policy because it prevents the insured from receiving the entire policy limit unless the covered property is insured for much more than the ACV of the loss. Particularly, Royal asserts that the policy is illusory, because “Prime would be collecting a premium on a policy that an insured could never collect [on] by definition” as “the [ACV] will always be a significantly smaller amount than [RCV].”
Although Prime concedes that “it is unusual for a policy to base coverage and coinsurance on different property values,” at least one other jurisdiction has found no disharmony within an insurance policy that measures the insurer’s liability one way and the coinsurance requirement another way. Carley Capital Group, supra at 82 n 44. Moreover, basing coverage and coinsurance on different property values is not unprecedented in the context of commercial property insurance. See Keeton and Widiss, Insurance Law (student ed), § 3.8, p 207.
Here, nothing has been presented to clearly establish that the coinsurance clause in this case transgresses our state and federal constitutions, our statutes, the common law, our administrative rules and regulations, or our public rules of professional conduct. Terrien, supra at 67, 67 n 11; Pitsch, supra. Royal essentially argues that the insurance policy should be reformed because it is unfair to base coinsurance liability on the RCV of the property while allowing Prime to limit its liability to the ACV of the loss. However, this Court cannot rely on litigants’ subjective views of fairness to establish the public policy of this state. In sum, Royal’s public policy claim is not clearly rooted in the law, Terrien, supra at 67, and because “[t]here is no other proper means of ascertaining what constitutes our public policy,” id,., Royal’s claim must be rejected.
Royal last argues that the coinsurance clause conflicts with “a public policy interest against promoting fraudulent or deceptive practices codified in Michigan’s Uniform Trade Practices Act [MCL 500.2001 et seq.] as well as the Surplus Lines [Insurance] Act [MCL 500.1901 et seq..} .. . .” We disagree. Because Prime is a surplus lines carrier, its rates and forms are not subject to the Uniform Trade Practices Act. A surplus lines insurance carrier is not authorized to “transact insurance in Michigan but [is] eligible to write insurance business under [the Surplus Lines Insurance Act].” MCL 500.1903(1)(a). Surplus lines insurance carriers are only permitted to issue insurance when coverage is unavailable from an authorized carrier. MCL 500.1910(1).
“ ‘Historically, the function of surplus lines insurance was to provide lines of insurance that were in excess of the lines, or amounts of a particular line, which could be absorbed by the insurance companies admitted to do business within a state. Today it has come to mean any insurance placed with insurance companies not admitted to do business in a particular state. Non-admitted insurers provide valuable services in addition to their historic function. First, non-admitted insurers are often respon sible for the introduction of wholly new lines of insurance coverage in areas in which admitted companies have shown little interest. Moreover, they can write insurance risk by risk, whereas their admitted counterparts, because of the restrictions imposed by state regulation and the belief that actuarial tables based on extensive sampling are necessary, are confined to writing only class insurance. The ability to so individualize insurance coverage enables such insurers, through the use of non-standard forms, to tailor their policies to the exact needs of the insured, and also to perform a valuable service in writing deductibles. Finally, the existence of surplus lines insurers provides an escape from the rigid rate and form regulations imposed by states on admitted insurers ....’” [Allen v Michigan Prop & Cas Guaranty Ass’n, 129 Mich App 271, 277; 341 NW2d 500 (1983), quoting OAG 1979-1980, No. 5612, p 510, in turn quoting Lockwood, Insurance — State Regulation — Surplus Lines Insurance, 61 Mich L R 1171-1172 (1963).]
Under MCL 500.1904(1), except for rates that are unfairly discriminatory, a surplus lines insurance carrier’s rates are not “subject to [the insurance] code . ..” Also, under MCL 500.1904(2), “[f]orms used by unauthorized insurers pursuant to ... [the Surplus Lines Insurance Act] shall not be subject to [the insurance] code, except that a policy shall not contain language which misrepresents the true nature of the policy or class of policies.” Thus, the coinsurance clause is not subject to the Uniform Trade Practices Act. Further, that Prime paid Royal under the property insurance policy establishes that the true nature of the policy was not misrepresented. Thus, we conclude that Royal’s contention that Prime’s policy is violative of the Surplus Lines Insurance Act is without merit.
Moreover, we conclude that the lower court record does not reflect that Prime’s business practices are fraudulent or deceptive. An insured is obligated to read the insurance policy. See Marlo Beauty Supply, Inc v Farmers Ins Group of Cos, 227 Mich App 309, 324; 575 NW2d 324 (1998); Parmet Homes Inc v Republic Ins Co, 111 Mich App 140, 145; 314 NW2d 453 (1981), citing House v Billman, 340 Mich 621; 66 NW2d 213 (1954), and Russel v State Farm Mut Automobile Ins Co, 47 Mich App 677; 209 NW2d 815 (1973). Here, the coinsurance clause gives plain and unambiguous instruction on how to calculate the amount that recovery is reduced by insurance is not maintained at the specified percentage of the RCV indicated on the declarations page. As previously mentioned, the coinsurance clause provides three examples of how the clause operates, one of which specifically addresses how the coinsurance clause would operate in a case like Royal’s, where the amount of the policy limit is significantly less than the coinsurance percentage of the RCV There is no reasonable dispute that had Royal read this portion of its policy, it would have understood the extent and effect of the coinsurance clause. Given the clarity of the coinsurance clause, we cannot conclude that it was fraudulent or deceptive.
Moreover, Prime’s status as a surplus lines insurance carrier supports the above conclusion that Royal is not entitled to relief on public policy grounds. Royal was not able to obtain coverage from an authorized insurer, presumably because of the high degree of risk involved in insuring the buildings. Indeed, to obtain any insurance coverage, Royal was required to go to an agent or broker specially licensed to transact in surplus lines insurance. MCL 500.1905. Certainly, Royal must have be been aware that Prime was willing to insure against higher risks and that Prime’s insurance policy would be tailored to enable it to take those higher risks. In other words, Royal should have known to pay particular attention to the policy because it was obtained through a surplus lines insurance carrier.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
This is not an actual reproduction of the table contained in the policy application, though it reflects its form and content. The handwritten entries on the policy application are emphasized in bold.
This is not an actual reproduction of the table contained in the declarations page of the policy, though it reflects its form and content. The hand-typed entries on the declarations page are emphasized in bold.
Part of this payment ($105,270.08) went to the city of Detroit to cover demolition costs.
Royal did not move for summary disposition. The trial court exercised its authority under MCR 2.116(I)(2) to render judgment in favor of Royal when resolving Prime’s motion for summary disposition.
The insurance policy contains a choice-of-law clause that provides, “The provisions of this policy are to be construed in accordance with the laws of the State of Illinois, as the state in which the policy has been entered.” However, neither party has raised the choice-of-law issue,.and the trial court’s decision was based solely on Michigan law. We have unilaterally surveyed Illinois law. Illinois rules of insurance policy interpretation are substantially similar to those of Michigan. Compare Hobbs v Hartford Ins Co of the Midwest, 214 Ill 2d 11, 17-18, 20-25; 823 NE2d 561 (2005), with Klapp, supra at 467, 469-476, and Churchman, supra at 566-567. The conclusion we reach in regard to the application for the policy and the interpretation of the coinsurance clause is the same under Michigan law and Illinois law. See page 722-723.
The declarations page is generally considered part of the insurance policy. See 1 Appleman, Insurance 2d, § 4.4, p 417. Also, the instant policy expressly provides that the “ ‘Application’.. . form[] [is] part of the policy.”
5 Corbin, Contracts (1998 rev ed), § 24.18, pp 174-175, provides:
A party who seeks judicial reformation of a written contract usually asserts that the written words do not express to others the meaning that both parties had intended. The request for reformation is therefore a request that the court alter the words of the document. This alteration may involve deleting words or punctuation, rearranging words or punctuation, or inserting words or punctuation. In contrast, a party who seeks interpretation asks the court not to change the actual words of the document but to determine the meaning of those words. One who asks for interpretation does not, therefore, seek replacement of any the words written in the document. Instead, this party asserts that the words properly express the meaning which both parties understood and to which they both assented. [Emphasis added.]
Royal is not requesting this Court to determine the meaning of “RCV” or “ACV” The meanings of those acronyms are patently clear. Rather, Royal seeks to replace “RCV” with “ACV” throughout the coinsurance clause.
It is elemental that courts will not make a new contract of insurance for the parties under the guise of construing the contract.” Edgar’s Warehouse, Inc v United States Fidelity & Guaranty Co, 375 Mich 598, 602; 134 NW2d 746 (1965). Here, Royal would have this Court rewrite the coinsurance clause to state “ACV” at every instance “RCV” is stated. “Obviously the interpretation urged involves reading into the contract [words] not contained therein. This the Court may not do. Plaintiffs right of recovery rests on the contract as written. Under the guise of interpretation it may not be reformed or modified.” Cottrill v Michigan Hosp Service, 359 Mich 472, 476; 102 NW2d 179 (1960).
Because we conclude that the insurance policy is not ambiguous in regard to coinsurance, we need not address Royal’s claim that it is entitled to have ambiguities construed in its favor pursuant to Martin or the rule of contra proferentem.
Plaintiff concedes that an insured could recover the full policy limit on the loss of a new building whose RCV has not depreciated more than 20 percent.
“Nature” is defined as “[a] kind, sort, type, order; general characteristic.” Black’s Law Dictionary (6th ed).
Notably, the trial court dismissed with prejudice the count for fraud contained in Royal’s complaint. The trial court concluded that Royal failed to show that it could reasonably have relied on Prime’s alleged misrepresentations considering that Royal could have read the policy. Royal did not appeal the trial court’s decision in this regard, and Royal is precluded from challenging this finding on appeal. | [
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Saad, J.
Plaintiffs, the American Federation of State, County and Municipal Employees (AFSCME) and AFSCME Council 25, brought this action and alleged claims of breach of contract, tortious interference with an advantageous business relationship or expectancy, and tortious interference with a contractual relationship. Plaintiffs filed their complaint after defendants Wayne McIntyre and Jamie Estep, as former officers of AFSCME Local 2259, withdrew funds from plaintiffs’ bank account at defendant Bank One, NA, and deposited them into a new account in the name of the Genesee County Deputy Sheriffs’ Association. Following a bench trial, the trial court dismissed plaintiffs’ claims for no cause of action. Plaintiffs appeal, and we affirm in part, reverse in part, and remand this case to the trial court.
I. OBLIGATIONS UNDER AFSCME CONSTITUTION AND RULES
A. APPLICABLE LAW
Plaintiffs argue that the trial court erred by entering a judgment of no cause of action on their claims. A trial court’s findings of fact “may not be set aside unless clearly erroneous.” MCR 2.613(C). A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made. Webb v Smith (After Remand), 204 Mich App 564, 568; 516 NW2d 124 (1994). Questions of law are reviewed de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
“In interpreting a contract, [a court’s] obligation is to determine the intent of the contracting parties.” Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). “If the language of the contract is unambiguous, we construe and enforce the contract as written.” Id. A “ ‘contract is ambiguous when its provisions are capable of conflict ing interpretations.’ ” Klapp v United, Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003) (citation omitted). “[C]ourts must... give effect to every word, phrase, and clause in a contract and avoid an interpretation that would render any part of the contract surplusage or nugatory.” Id. at 468.
B. AFSCME CONSTITUTION AND RULES
Article IX, § 52 of the AFSCME constitution provides that the constitution “shall constitute a contract between [AFSCME] and each of its subordinate bodies individually.” See also United Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Industry v Local 334, 452 US 615, 619-622; 101 S Ct 2546; 69 L Ed 2d 280 (1981) (an international union’s constitution is generally considered to be a contract with its local unions); Mayo v Great Lakes Greyhound Lines, 333 Mich 205, 214; 52 NW2d 665 (1952) (members of a voluntary organization are bound by its constitution and bylaws); see also In re General Teamsters, Warehousemen & Helpers Union, Local 890, 265 F3d 869, 874 (CA 9, 2001).
Under article IX, § 1 of the AFSCME constitution, the charters of local unions are explicitly required to “conform to [AFSCME’s] Constitution, laws, rules, and regulations ... .” As members, a local’s officers are subject to the membership oath contained in the AFSCME constitution, by which they “promise to abide by the Constitution of” AFSCME. Under article IX, § 51 of the AFSCME constitution, a local’s elected officers are also required to “promise and pledge” to “perform faithfully and with honor the duties of the office. . . and . . . deliver ... all books, papers and other property of this union... at the close of [an] official term.” Similarly, under article VI, § 1(A) of the constitution for Local 2259, the local’s president has the duty “to administer the affairs of this local in accordance with this constitution and the constitution of the International Union.” Article VI, § 4(C) and (H) of the local’s constitution provides that it is the treasurer’s duty to “be responsible for any and all monies, properties . . . of this local that are delivered to him,” and “[t]o act as custodian of all property of the local union.” Under article VI, § 7(B) of the local’s constitution, the executive board has “the power to allocate funds not to exceed a total of four hundred dollars ($400.00) by a majority vote, in an emergency situation[,] without the approval of the membership . . . .”
The AFSCME financial standards code is one of the laws, rules, and regulations with which locals and a local’s officers are required to comply. Under article I, § 1 of this code, all locals are “required to meet the standards established by and set forth in this Code....” Under article II, § 1 of the code, “[n]o monies other than funds belonging to the affiliate may be placed into any affiliate bank or investment account.” Under article II, § 3 of the code, “[u]nion officers and staff have a fiduciary responsibility to manage and invest union funds prudently, in accordance with the affiliate’s constitution and for the exclusive benefit of the affiliate and its members.” The preamble to article V of the financial standards code similarly provides: (1) that “[u]nion money can be spent only with proper authorization,” and “[authorization should be given only for expenditures that serve a legitimate union purpose”; (2) that “[i]t is the duty of all union officers ... to exercise adequate monitoring of all authorizations to ensure that funds are spent only for legitimate union purposes”; and (3) that “[ojfficers and staff have a fiduciary responsibility to see that the union’s assets are managed prudently, ensuring that any and all expenditures are for the exclusive benefit of the affiliate and its members.”
Most significantly, article IX, § 35 of the AFSCME constitution provides:
The funds or property of a subordinate body, whether chartered or not, shall not be divided among the members, but shall remain intact for the use of such subordinate body for its legitimate purposes while such subordinate body exists. When any such subordinate body secedes or discontinues affiliation, all monies, books,... and other properties shall be transmitted to the International Secretary-Treasurer and assigned to the International Union.... No property of a subordinate body and no property in the possession, custody or control of any such subordinate body or any of its officers or employees... shall be given, contributed, assigned, donated or result to, or be given to the control of, either directly or indirectly, any seceding, dual or antagonistic labor organization or group or to any subordinate body which is in violation of the International Constitution, but any such property shall remain in the custody or control of the subordinate body as indicated above, regardless of whether a majority of the membership have seceded or disaffiliated. [Emphasis added.]
Under article IX, § 36 of the AFSCME constitution, if a local has “seceded or purported to secede,” a local threatens to dissolve or secede, “dissipation or loss of the funds or assets of the subordinate body is threatened,” or a local “is acting in violation of this Constitution,” the local may be placed under administratorship. Under article IX, § 44 of the AFSCME constitution, the administrator has the right to suspend the local’s officers, and “shall have the right, upon demand, to take possession of all the funds, properties, books and other assets” of the local.
C. ANALYSIS
The AFSCME constitution is clear and unambiguous and not subject to judicial interpretation insofar as it requires locals and their officers, including defendants McIntyre and Estep, to abide by its provisions, and those of AFSCME’s rules and regulations, including the financial standards code. Further, article IX, § 35 of that constitution clearly and explicitly prohibits a local and its officers from doing precisely what those defendants did in this case: transferring money that belongs to the local, or is in the local’s possession, to any seceding or antagonistic labor organization or group. We conclude that McIntyre and Estep acted in breach of article IX, § 35 of the AFSCME constitution.
Additionally, article IX, § 35 of that constitution imposes on a disbanding or seceding local the unambiguous obligation to return “all monies, books, . .. and other properties” to AFSCME. Pursuant to his oath of office, McIntyre similarly promised to deliver to his successor in office “all books, papers and other property” in his possession at the close of his official term. Likewise, under article VI, § 4(C) and (H) of the local’s constitution, Estep was “responsible for any and all monies, properties ... of this local that are delivered to him,” and had the duty “[t]o act as custodian of all property of the local union.” By taking the local’s money and refusing to return it, both defendants violated their obligations under these provisions.
As argued by plaintiffs, dues received by a union belong to the union. For example, in In re Professional Air Traffic Controllers Org, 233 US App DC 73, 74, 78 n 16; 724 F2d 205 (1984), the court addressed the question whether a strike benefit trust fund was part of the union’s bankruptcy estate. It was undisputed that the trust was created out of dues deducted from union members’ paychecks and that the essential purpose of the trust had failed. Id. at 74-76, 78. Thus, the contents of the trust would revert to its donor, and the appellate court’s task was to determine the identity of that donor — the union members or the union itself. Id. at 76-79. Though the membership designated a percentage of their dues to go to the trust for a specific purpose, and could have dissolved the trust at any time, the court found that the trust was funded with dues, and, because dues are the property of the union, the union was the trust’s donor. Id. at 77-79.
Similarly, in Murray v Laborers Union Local No 324, 55 F3d 1445, 1455 (CA 9, 1995), the court held that a member could not maintain an action for conversion where the union applied his prepaid dues payment toward arbitration costs rather than his dues. The court found that, because the union had both possession and title to the dues, it had not exercised ownership rights over property belonging to another. Id. Additionally, in In re General Teamsters, supra at 876, the court held that members do not have an equity interest in their local union because they cannot share in the local’s profits or control its assets, and because, once dues are paid, they become the property of the local union. Moreover, as a matter of equity, dues collected pursuant to a collective bargaining agreement’s check-off procedures belong to the union that negotiated the agreement. See New York Shipbuilding Corp v Industrial Union of Marine & Shipbuilding Workers of America, Local No 1, 15 NJ Super 229, 233; 83 A2d 237 (1951).
While the funds at issue here may have been generated by the 1999 voluntary assessment rather than the local’s ten percent share of the per capita tax, that is a distinction without a difference. The parties agree that, under the AFSCME constitution, art IX, §§ 5, 6, and 11, AFSCME and Council 25 are entitled to a percentage of the per capita tax, but not any part of the voluntary assessment. The local is rebated its ten percent share of the per capita tax, plus the entire amount of the voluntary assessment. Accordingly, the distinction between money generated by the per capita tax and money generated by a voluntary assessment is relevant in determining AFSCME’s and Council 25’s shares of the money deducted from the paychecks of the local union’s members, and the amount of the local’s rebate. Plaintiffs could not have kept the funds generated by the voluntary assessment in the first instance.
However, there is nothing in the AFSCME constitution, Local 2259’s constitution, or the financial standards code that makes a distinction concerning the permissible disposition of a local’s funds on the basis of the source of those funds. In particular, nothing in these documents would lead a reasonable person to believe that the many rules applicable to the disposition of a local’s money do not apply to funds generated by means other than the local’s share of the per capita tax— whether by a voluntary assessment, a donation, a fundraiser, a bequest, or other means. Instead, these rules are meant to prevent corruption and misuse of union funds, and all speak in general terms such as, for example, “all monies” and “all properties” (Local 2259 constitution, art VI, § 4(C); AFSCME constitution, art IX, § 35), “all the funds” (AFSCME constitution, art IX, § 44), the “funds” (AFSCME financial standards code, art II, § 1; AFSCME constitution, art IX, § 35), and “no property” (AFSCME constitution, art IX, § 35). McIntyre and Estep have not identified any language in these documents where a distinction is made concern ing the permissible disposition of a local’s funds on the basis of the source of the funds, and we have found none. Indeed, the relevant portion of article IX, § 35 of the AFSCME constitution states broadly that “[n]o property of any subordinate body and no property in the possession, custody or control of any such subordinate body or any of its officers or employees” shall be given to a seceding or antagonistic labor organization, or group.
By arguing that they were seeking to protect the local’s funds for the local’s membership, McIntyre and Estep impliedly concede that the funds they withdrew belonged to the local. Moreover, article II, § 1 of the financial standards code clearly provides that “[n]o monies other than funds belonging to the affiliate may be” deposited in the local’s bank account. Article IV, § 7 of that code provides that “[a]ny amounts received, whether in cash or check, that are the property of the affiliate, must be deposited in full in a bank account in the name of the affiliate.” (Emphasis in original.) Thus, the financial standards code contemplates that all funds deposited in a local’s bank account belong to the local. Further, article IX, § 2 of the financial standards code requires that the local’s monthly financial report list not only income from “dues and/or per capita tax” and from “initiation and/or reinstatement fees,” but also “[fincóme from any other sources, identifying the source and the purpose of the payment.” Thus, the financial standards code contemplates both that a local may receive income from sources other than “dues and/or per capita tax,” and that any such income belongs to the local.
Similarly, as a matter of property law, there is a rebuttable presumption that funds deposited in a bank account belong to the owner of the account. See Muskegon Lumber & Fuel Co v Johnson, 338 Mich 655, 661; 62 NW2d 619 (1954). There is no support for any claim that, while the local’s ten percent share of the per capita tax belongs to the local, funds generated by the voluntary assessment belong to the local’s members themselves. Rather, the evidence here indicated that the increase was approved so that the local could spend the money on matters that it could not afford with its ten percent share of the per capita tax. Article II, § 3 of the financial standards code imposes on McIntyre and Estep, as “[u]nion officers[,] .. . [the] fiduciary responsibility to manage and invest union funds prudently, in accordance with the affiliate’s constitution and for the exclusive benefit of the affiliate and its members.”
In the context of a dispute between factions belonging to the same religious group, our Supreme Court held, as a matter of property law, that a faction that seeks to leave the group “ ‘could not take with them, for their own purposes, or transfer to any other religious body, the property dedicated to and conveyed for the worship of God under the discipline of this religious association; nor could they prevent its use by those who chose to remain in the church, and who represent the regular church organization.’ ” Davis v Scher, 356 Mich 291, 299; 97 NW2d 137 (1959), quoting Fuchs v Meisel, 102 Mich 357, 373-374; 60 NW 773 (1894). In this case, while it is true that the voluntary assessment was intended for the local’s use, article IX, § 35 of the AFSCME constitution unequivocally states that “[t]he funds or property of a subordinate body . . . shall not he divided among the members ... .” Thus, while a local’s funds are to be used for the benefit of the local and its members for a proper union purpose, all the funds received by a local union belong to the local itself, and are not to be divided among its members.
We conclude that AFSCME is entitled to recover the monies withdrawn by McIntyre and Estep in this case, not because the members of Local 2259 so intended, but because article IX, §§ 35, 36, and 44 of the AFSCME constitution so provide, and McIntyre and Estep are contractually bound by those terms. Additionally, by withdrawing the local’s money, endorsing a check payable to themselves, and depositing the check into the bank account of a seceding or antagonistic labor organization, McIntyre and Estep clearly and unequivocally violated article IX, § 35 of the AFSCME constitution. Their actions exceeded the scope of their powers and those of the local union and, therefore, were “ultra vires, unlawful and void, and incapable of being made good by ratification or estoppel.” Louisville, N A & C R Co v Louisville Trust Co, 174 US 552, 567; 19 S Ct 817; 43 L Ed 1081 (1899). Therefore, the alleged belated ratifications of these defendants’ actions by the local’s deposed executive board and the local’s membership were both ineffective because, under the AFSCME constitution, neither body had the power to approve a transaction that was clearly and unambiguously prohibited by article IX, § 35 of that constitution.
II. EQUITABLE ESTOPPEL
We agree with plaintiffs that the trial court erred by finding that plaintiffs were equitably estopped from demanding the return of the money taken by McIntyre and Estep.
A. APPLICABLE LAW
Equitable issues are reviewed de novo, but we review for clear error the court’s findings of fact supporting its decision. Webb, supra at 568.
“Equitable estoppel is ... a doctrine that may assist a party by precluding the opposing party from asserting or denying the existence of a particular fact. Equitable estoppel may arise where (1) a party, by representations, admissions, or silence intentionally or negligently induces another party to believe facts, (2) the other party justifiably relies and acts on that belief, and (3) the other party is prejudiced if the first party is allowed to deny the existence of those facts.” [Lakeside Oakland Dev, LC v H & J Beef Co, 249 Mich App 517, 527; 644 NW2d 765 (2002), quoting Conagra, Inc v Farmers State Bank, 237 Mich App 109, 140-141; 602 NW2d 390 (1999).]
B. ANALYSIS
The trial court found that plaintiffs were equitably estopped from denying that the funds generated by the voluntary assessment belonged to the local for it to spend as it chose. The court further ruled that “the equities here dictate that those monies are the monies of the local membership,” and added that McIntyre and Estep were “only acting as the leadership of this local, in an effort to protect and preserve what rightfully belonged to the local” and that “[t]hey had no intent to steal.” The court concluded that McIntyre and Estep “committed no misappropriation or tortuous [sic] wrongdoing.”
Although we do not disagree with the court’s initial statement, it misses the point. While the local was free to use the funds generated by the voluntary assessment to purchase flowers, throw parties, or assist members in financial need — the stated purposes of the voluntary assessment — those matters can all be viewed as a benefit to the local membership and a proper union purpose. But those expenditures do not violate express provisions of the AFSCME constitution, while the actions of McIntyre and Estep in withdrawing the local’s money and giving it to a seceding or antagonistic labor organization clearly violate article IX, § 35 of the AFSCME constitution. There is no evidence that plaintiffs induced McIntyre and Estep, or the local’s membership, to believe that they were free to spend the local’s money without the restrictions imposed by the AFSCME constitution.
Additionally, this is a breach of contract case, not an equitable action. Under the clear language of article IX, § 35 of the AFSCME constitution, the local’s money could not be distributed to the membership, could not be turned over to a seceding or antagonistic labor organization or group, and had to be turned over to the local’s administrator and assigned to AFSCME upon a local’s demise. Because McIntyre and Estep acted in clear violation of the AFSCME constitution, the local’s constitution, and the financial standards code, they were not acting on behalf of the local. Rather, they were acting on behalf of themselves and other dissident members to prevent plaintiffs from taking what those defendants misguidedly believed they were entitled to keep. Plaintiffs need not show that McIntyre and Estep acted with an intent to steal in order to prevail on their breach of contract claim.
Accordingly, the trial court erred by finding that plaintiffs were equitably estopped from demanding a return of the money taken by McIntyre and Estep. Thus, the trial court erred by entering a judgment of no cause of action on plaintiffs’ breach of contract claim against McIntyre and Estep. Plaintiffs are entitled to judgment in their favor, including an order requiring McIntyre and Estep to return the money to AFSCME, as the local’s administrator.
III. MOTION TO AMEND
Plaintiffs further complain that the trial court erred when it denied their motion to amend their complaint to add claims for conversion and statutory conversion, and to add the Genesee County Deputy Sheriffs’ Association as a party. We disagree.
Although plaintiffs possibly could have maintained a claim for statutory conversion against the association because the association is the entity by which McIntyre does business under an assumed name, he would be prejudiced by the late addition of a claim for treble damages for statutory conversion. Additionally, plain tiffs could have added the association as a party from the beginning. In the context of a representational dispute, where it appears that defendants acted in good faith — although misguidedly — we do not believe that justice requires that plaintiffs be permitted to add a late claim for statutory conversion and treble damages against the association. We therefore conclude that the trial court did not abuse its discretion in denying plaintiffs’ motion to amend.
In light of our resolution of this case, we need not address plaintiffs’ remaining claims.
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Importantly, article IX, § 35 further provides that, if a disbanding or seceding body reorganizes with AFSCME within two years after the assets are transferred to the international secretary-treasurer, AFSCME will return the money and other assets to the reorganized body. This provision clearly contemplates that, after the assets are held “in trust” for two years and the body fails to return to AFSCME, the money and other assets will permanently remain with AFSCME.
Conversely, where the power to do an act exists, but has not been properly exercised, the act is merely voidable, not void, and can be ratified. See American La France & Foamite Industries, Inc v Village of Clifford, 267 Mich 326, 333-334; 255 NW 596 (1934).
The equitable estoppel theory was not raised by defendants, but was raised independently by the trial court. See Conagra, Inc v Farmers State Bank, 237 Mich App 109, 140-141; 602 NW2d 390 (1999). Moreover, equitable estoppel is clearly not an independent cause of action, but is merely a defense to be applied only when a party justifiably relies and acts on the belief that misrepresented facts are true. Westfield Cos v Grand Valley Health Plan, 224 Mich App 385, 391; 568 NW2d 854 (1997). For the reasons set forth in this section, the trial court erred by applying the doctrine to prevent AFSCME from seeking the return of the money taken by McIntyre and Estep.
At the hearing of plaintiffs’ motion to amend, the attorney for Bank One stated, without contradiction hy plaintiffs’ counsel, that he was taking no position concerning plaintiffs’ motion because plaintiffs’ counsel had assured him that the proposed amended complaint would not add any claims against the bank. In light of plaintiffs’ silence, we conclude that plaintiffs are estopped from arguing now that they should have been allowed to amend their complaint to assert additional claims against the bank. See Lakeside, supra at 527.
A trial court’s decision on a motion for leaye to amend will not be reversed absent an abuse of discretion resulting in injustice. Phillips v Deihm, 213 Mich App 389, 393; 541 NW2d 566 (1995).
“In the civil context, conversion is defined- as any distinct act of domain wrongfully exerted over another’s personal property in denial of or inconsistent with the rights therein.” Foremost Ins Co v Allstate Ins Co, 439 Mich 378, 391; 486 NW2d 600 (1992). However, “[a]n action for the conversion of bank account funds ... can he maintained only if there was an obligation on the defendant’s part to return or deliver the specific money entrusted to it.” Check Reporting Services, Inc v Michigan National Bank-Lansing, 191 Mich App 614, 626; 478 NW2d 893 (1991). In this case, McIntyre and Estep had no obligation to return any specific cache of money. Rather, they had an obligation to return an amount of money equal to the amount of money withdrawn from the local’s bank account. Thus, plaintiffs may not maintain an action for common-law conversion against McIntyre and Estep.
“Statutory conversion, by contrast, consists of knowingly ‘buying, receiving, or aiding in the concealment of any stolen, embezzled, or converted property.’ ” Head v Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 111; 593 NW2d 595 (1999), quoting MCL 600.2919a. But statutory conversion is “ ‘not designed to provide a remedy against the individual who has actually stolen, embezzled, or converted the property.’ ” Campbell v Sullins, 257 Mich App 179, 191-192; 667 NW2d 887 (2003), quoting Marshall Lasser, PC v George, 252 Mich App 104, 112; 651 NW2d 158 (2002). Because McIntyre and Estep are the persons who took the local’s money, plaintiffs may not assert claims for statutory conversion against them. | [
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] |
Boyles, J.
This bill of complaint was filed by 27 stockholders of the defendant American PetroChemical Company, a Michigan corporation, for and on behalf of the company, to compel defendants La Joie, Hinsch and Mann to account for funds invested in the corporation and to restrain them from further expending corporate funds except in lawful course of business. Subsequent to filing the bill of complaint, the corporation was' adjudged bankrupt, Schwartz was appointed trustee in bankruptcy and substituted as party plaintiff. Prom an order granting a motion to dismiss the bill on the ground of multifariousness, plaintiff appeals.
The bill of complaint alleges that the defendants La Joie, Hinsch and Mann were the original promoters and directors of the company, that for the purpose of selling stock they had obtained authority from the corporation and securities commission under certain reservations and conditions, that they had made misrepresentations of fact, and that they had violated the conditions imposed by the corporation and securities commission. It alleges that they had paid themselves salaries contrary to law, had expended excessive amounts for plant construction, salesmen’s commissions, and other expenses, that they had grossly mismanaged the funds and the affairs of the company resulting in insolvency, unlawfully converted shares of stock to their own use, and that defendant Mann had failed to pay for stock subscribed for. The bill asks for a decree requiring defendants La Joie, Hinsch and Mann to account to the corporation and the stockholders, to submit the books and records of the corporation for audit, and for a decree that they are jointly and severally liable for all corporate funds illegally and improperly expended by them, and for general relief. It also asks that a personal decree be entered against defendant Mann for the balance due on his stock subscription.
The bill of complaint was filed August 19, 1936; defendants answered in October, 1937, and in March, 1938; in July, 1938, the case was referred to a circuit court commissioner to take proofs and report findings and conclusions. In December, 1939, the commissioner filed his report recommending that a decree be entered against defendants La Joie, Hinsch and Mann jointly and severally in excess of $17,000, and against defendant Mann in the sum of $6,760. Defendants filed exceptions; briefs were filed by both parties, and in April, 1940, the case was assigned for hearing; on August 7, 1940, defendants filed the motion now under consideration to dismiss the bill of complaint upon the ground that the bill was multifarious. On August 21st the order was entered dismissing the bill on the ground of multifariousness, from which plaintiff appeals.
Chancery courts have visitorial jurisdiction over directors, managers and officers of corporations. The court may compel them to account for their official conduct or misconduct in the management of corporate funds, decree payment of money or property they may have- acquired, lost or wasted (3 Comp. Laws 1929, § 15328 [Stat. Ann. § 27.2393]). In a situation parallel with the case at bar, where the defendant demurred to the bill on the ground inter alia of multifariousness (Robinson v. DeLuxe Motor Car Co., 170 Mich. 163), this court said:
“The point is made that the bill is multifarious. We think the sole purpose of the bill is to reinvest the corporation with its property and assets, which it has been unlawfully deprived of by a series of wrongful acts of commission and omission, committed by the defendants Kaufman as officers and directors of the company. All of the acts for which relief is sought are for wrongs done to the corporation, and the defendants Kaufman are charged with the commission of them. We see nothing in the way of disposing of the controversy in one suit.”
This court, in Johnson v. Harrison, 199 Mich. 221, in disposing of the contention that the bill was multifarious, said:
“We do not think that the bill is multifarious, as the grounds of liability all reach the same subject matter and are in no way distinct from each other, the defendants are all connected in interest and liable in the one subject. A somewhat similar case arose in West Virginia (Arnold v. Knapp, 75 W. Va. 804 [84 S. E. 895]), * * * It was there said:
“ ‘To lender a bill multifarious the different grounds of the suit must be wholly distinct from each other, and each ground stated in the bill must be sufficient in itself as a subject of equity jurisdiction. * * * “The objection of multifariousness in a bill may be disregarded except in plain cases, whereby the administration of justice will be furthered and multiplicity of suits avoided.” * * * In the case here there is no such uniting of several and distinct matters distinct in their nature, against several defendants, unconnected in interest and liability, as to properly stamp the bill multifarious.’ ”
See, also, Wales v. Newbould, 9 Mich. 45; Torrent v. Hamilton, 95 Mich. 159; County of Cass v. Shattuck, 288 Mich. 555.
We see no reason why the issues raised by the bill and answers cannot be decided in the final consideration of the case. The bill should not have been dismissed on the ground claimed.
Even if the motion had been well grounded, defendants must be held to have waived the question of multifariousness by failing to raise it within the proper time. Equity does not favor those who sleep on their rights. The motion to dismiss was not filed until nearly four years from the filing of the bill of complaint, over two years after defendants had filed answers, and nearly a year after the circuit court commissioner had completed the hearing and filed his report. Defendants made no attempt to give any reason for excusing this delay. While the question may be raised by motion to dismiss (3 Comp. Laws 1929, §14120 [Stat. Ann. §27.814]), the motion must be filed and served within 15 days after the receipt of the pleading attacked. Court Rule No. 27, § 6 (1933). The circuit court or judge, for good cause shown on special motion after notice, may extend the time. Court Rule No. 27, § 8 (1933). No such application for extension has been made or cause shown. See Payne v. Avery, 21 Mich. 524; Lyon v. Clark, 137 Mich. 438; L. J. Mueller Furnace Co. v. Wayne Circuit Judge, 226 Mich. 672; Maryland Casualty Co. v. Moon, 231 Mich. 56.
The order dismissing the bill of complaint is set aside and the case remanded for final disposition, with costs to appellant.
Sharpe, C. J., and Chandler, McAllister, "VViest and Butzel, JJ., concurred with Boyles, J. | [
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] |
Campbell, J.
Niemann and Jochen brought an action of trover against Adams as sheriff of Saginaw county for the •conversion of a stock of goods on -which they held a chattel mortgage given by Ernest Jochen, against whom Adams held executions. The sale was made in opposition to the rights of the mortgagees, and with knowledge of their claims, which the sheriff refused to recognize. They recovered judgment below to the amount of their mortgage, which was less than the debts secured by it.
The defense below rested, on the alleged' invalidity of the mortgage on grounds relating to its formal sufficiency as joint in form, as well as to its construction. An attempt was also made to assail its good faith.
It is claimed the court erred in saying to the jury that the levy could not prevail “ if the mortgage was given to secure an honest transaction, debt or liability, and if it was not given for the sole purpose of hindering and delaying the other creditors of Ernest Jochen.”
If this had been the entire charge on this subject, it is undoubtedly open to misapprehension. We have no doubt a partially wrongful purpose may be such as to stand in the way of such a security.- But the court in giving further instructions put it beyond any doubt that there was no erroneous conclusion justifiable under the whole charge. It was clearly and distinctly laid down that honesty on the part of one of the mortgagees would not save the instrument if there was any fraud or wrong in the other. And the jury by special findings made the instruction unimportant. They found expressly that neither of the mortgagees took the mortgage with any unlawful intent. And they further found that the debts intended to be secured were somewhat larger at the date of the mortgage than the whole sum seemed, which was five thousand dollars. A mortgage taken without fraudulent intent to secure no more than the actual debt of the mortgagees is not open to any attack as fraudulent.
The chief defence seems to have rested on other grounds. The mortgage was made to Niemann and Emil Jochen jointly. But the debts intended to be secured were not joint but several. Niemann had two claims, — one for a personal ■debt debt due to himself originally, and one covering liabilities which he had undertaken for Ernest Jochen to other creditors. Emil Jochen also had a personal claim. It is insisted that a joint mortgage cannot be made to cover separate debts.
We do not think there is any legal objection to such a mortgage. We have already held, at this term, that a policy of insurance may be taken jointly to secure property owned in severalty. Castner v. Farmers' Mutual Fire Ins. Co. ante p. 15. It has never been necessary that the mortgage should be given directly to the beneficiaries. The security is always made in trust to secure obligations, and the trust •and the beneficial interest need not be in the same ban ría, A mortgage to a third person would be as valid as a mortgage to a creditor. The choice of a mortgagee is a matter -of’ convenience, and there can be no wrong, and there may be some advantage, in giving to all of the secured creditors ■a control over the security in which all are ratably interested, and it would effectually prevent any disputes as to priority.
It is also objected that the mortgage gave no such interest in regard to the portion of Niemann’s claim that arose out of ~bis having become security for the mortgagor, until it was shown he had paid the debts. It is enough on this point to «ay that by the terms of the mortgage, the mortgagees were entitled to sell the property unless payment of the amount «ecured was made by January 1,1880. This suit was brought «orne months thereafter.
Moreover we do not think the evidence tended to show that the mortgage was merely for indemnity on this portion ■of the liabilities. It rather tends to show that it was to secure those debts more directly, and was made with the express concurrence of the creditors who held them. And even if it had been to this extent an indemnity merely, that would not make it wholly or partially void as against creditors. An indemnity is valid if honestly and fairly given.
We think there was no error in' the judgment, and it should be affirmed with costs.
The other Justices concurred. | [
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] |
Graves, J.
Andrews held a chattel mortgage from one Stoddard on certain personal property, and Fillmore being a deputy sheriff seized the property on execution against the mortgagor and sold it. Andrews then sued in trover and on the trial the case turned upon the validity of the mortgage as against creditors.
The verdict was for the defendant. A charge was requested to the effect that although it should appear that the object of the mortgagor was fraudulent as to creditors, yet if it also appeared that the mortgage was made to secure an honest debt it would be valid unless the fraudulent purpose of the mortgagor was participated in by the mortgagee. The circuit judge refused to give the instruction, and ruled substantially that if the intent of the mortgagor was fraudulent as against the execution creditor, the mortgage, though given for an honest debt and received by the mortgagee in perfect good faith, could not be sustained against the execution.
In this there was error. The plaintiff was entitled to the instruction prayed for: State Bank v. Chapelle 40 Mich. 441; People v. Bristol 35 Mich. 28; Adams v. Niemann ante p. 135.
The judgment is reversed with costs and a new trial granted.
The other Justices concurred. | [
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Graves, J.
Tbe court is not satisfied that any case is made for relief in this cause and the decree below dismissing the bill is therefore affirmed, and under the circumstances, each party will be left to pay his own costs.
The other Justices concurred. | [
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] |
Cooley, J.
Walden sued the plaintiffs in error, in an action on the case for tearing down a dam, and thereby precluding his enjoyment of a water-power, the right to the use of which he claimed as an easement. The declaration averred that at the time of the committing of the alleged grievances, the plaintiff was owner in fee-simple and lawfully possessed of a certain water-power and mill-site with the appurtenances, situate in the township of Wyoming, in the county of Kent and State of Michigan, and upon lands in like manner owned and possessed by the plaintiff, “ and more particularly described as follows: Beginning at a point in or near the village of Grandville, where the north bounds of Prairie street intersects the west bounds of the canal or mill-race running across said street; thence westerly along the north bounds of said Prairie street two hundred feet; thence north two hundred feet; thence east two hundred feet to the west bounds of said canal or mill-race; thence south along the west bank of said canal or mill-race two hundred feet to the place of beginning; with the right of using so much of the water from said mill-race as may be necessary to propel four runs of stones to be used for the ordinary purposes for a grist or flouring mill; the volume of water to be used to be three cubic feet, under a pressure of eight feet head; also the use of a street of the ordinary width of streets in said village for ingress and egress to and from said conveyed premises. Also the use and enjoyment of five feet of land around said premises, for light and air. Also sufficient land for a tail-race from said premises to Buck creek, as now excavated, being the same premises and appurtenances which were conveyed to one George Ketcham, then of the city of Marshall in said State, by Thomas J. Hulbert, by deed dated the 15th day of November, 1838, and recorded in the records of Kent county on the 19th day of November, 1838, reference being had to said deed for a more minute and particular description thereof.” That the water-power mentioned in said description was-formed .by the water from said Buck creek, which w;as-turned into said mill-race by a dam across said creek; that the plaintiff acquired his said title January 16, 1877, at which time said dam was in existence, and raised the water in said creek so as to give a head of eight feet by means of said race upon the said lands of the plaintiff; that said plaintiff “ was the owner and in possession of the lawful right to have said dam remain as it was at the time of his said purchase, and to keep the same in perfect order for raising the water of said Buck creek to the head of eight feetbut that the defendants disregarding his rights, on the first day of June, 1878, tore away and destroyed said dam and thereby prevented the water flowing in and along said mill-race, etc. There were other counts in the declaration in which the plaintiff claimed the water-power as appurtenant to a mill-site not particularly described by metes and bounds.
On the trial it appeared from the plaintiff’s evidence that in the year 1838 Thomas J. Hulbert, mentioned in the declaration, was owner in fee-simple of the northeast quarter of the southwest quarter, and the northwest quarter of the southeast quarter of section eighteen in the township which includes the platted village of Grandville, and that in that year he erected a grist and flouring mill on said northeast quarter of the southwest quarter, near said canal or mill-race, and the same was operated by water taken from said canal or miff-race, through which the water was forced by a dam; that on November 15, 1838, Hulbert gave a deed to one George Ketcham of the land described in the declaration, supposing that the mill was upon it, and Ketcham took possession and the mill continued to be operated by means of said water-power until January, 1813, when it was destroyed by fire, and has never been rebuilt. The original deed from Hulbert to Ketcham was not put in evidence but only an abstract thereof. In the abstract the premises conveyed were described as follows: “ Beg. on north line of Prairie st., on west bank canal; thence west 200 ft.; thence north 200 ft.; thence east 200 ft.; and thence south 200 ft.; and water-power.” It further appeared that Hulbert was mistaken in supposing the mill to be on the land described; that, in fact, it was wholly upon other lands, and those described were nearly all upon the northwest quarter of said section. It further appeared that plaintiff had become possessed through several intermediate convey anees, of the rights which Hnlhert conveyed to Keteham, and the deeds, which were put in evidence, purported to convey hot only the lands described with the waterpower, but the “ mill and building thereon situate.” The plaintiff’s immediate grantor was Horace "Wilder, who became owner April 4, 1850, and continued to be owner until January 16, 1877, when he conveyed to the plaintiff. It further appeared that the dam which turned the water Into the race was washed away in 1849, and was rebuilt by Wilder in 1850, and that Wilder at some time not named put up a building to be used for a grist-mill a short distance from where the one stood that had been burned down, but not on the land described in the declaration, and the same was never completed or used. The defendants tore away the dam in June, 1878.
On the part of the defendants it was shown that the waterpower now claimed by the plaintiff had never been used since the burning of the Keteham mill in 1843; that in 1858, the land where the dam and race are was owned by Egbert Dewey and Joseph Blake, who conveyed to defendants March 6, 1878; that when defendants purchased of Dewey & Blake there was a mill on the lauds purchased worth more than ten thousand dollars, which was operated by water-power, obtained by means of a dam across Buck, creek, higher up than the one which was torn away; that after their purchase defendants commenced to make and did malee extensive and valuable permanent improvements to the mill and appurtenances, rebuilding the dam above the same, excavating a race from the dam to the mill, more than three-quarters of a mile, and changing the mill from a gristmill to a plaster-mill, and expending in such improvements about ten thousand dollars; that the dam which was torn out was about fifty-five rods down the creek from defendant’s mill; that for many years before their purchase the race through which plaintiff claimed • a right to take water had not had any current of water passing through it, and had the appearance of an abandoned ditch, grown over with grass and weeds, and cattle and horses pasturing by it would pass over, through and along it at pleasure, and without inconvenience; that the dam which formerly turned the water into it was rotten and dilapidated; that when defendants purchased they had no knowledge that "Wilder or any other person made any claim to any right, title, or interest in the said dam or race, or to any water-power created or furnished thereby, nor did they have such knowledge until after the dam was torn away as above stated; that the dam had not for several years been any material obstruction to the free passage of the water in said creek, except in times of freshets, when drift-wood and other refuse matter would lodge there upon the rotten timbers which remained, and that never since the burning of the Ketcham mill had the dam been used for the purpose of supplying power. Also that the Dewey & Blake mill was erected in 1858, at a cost of $13,000; that the dam which was torn out if kept up to its original height would set back the water upon that mill so as seriously to interfere with its operation and impair its value, and that Wilder, while the mill was being erected and afterwards while defendants were improving and extending it, lived near it and was cognizant of the expenditures which were being made, and made no claim to a right to maintain the old dam, and said nothing to apprise Dewey & Blake, or the defendants, that a claim would be set up, which, if valid, would render their mill and the expenditures thereon of little or no value.
The defendants also gave evidence that the south twenty acres of the northwest quarter of section eighteen, being the twenty acres on which the dam which was torn out and defendants’ mill were situated, was sold for the taxes delinquent for the year 1876, and a tax title obtained by Luman Jenison who subsequently conveyed to defendants. Also’ that the undivided five-sixths of the northeast quarter of the southwest quarter of section eighteen, which includes the site of the old Ketcham mill, was sold for the taxes delinquent for the year 1847, and the title acquired by George H. White, and that the whole of said last-mentioned parcel was sold for the taxes delinquent for 1852 and the title acquired by said White, who subsequently conveyed to Horace Wilder. This evidence was given for the purpose of an argument that the tax sales separated the easement from the land to which it was appurtenant, and thereby extinguished tlie easement; but the circuit judge ruled that they had no such effect.
Upon the foregoing facts and evidence, the legal questions discussed by the parties in the circuit court and in this court were substantially the following:
1. Has the plaintiff shown any right to the easement described in his declaration? If so, then,
2. Has the easement been lost by abandonment or by adverse possession ? Or,
3. Is the plaintiff estopped from now setting up the easement by the failure of Wilder to claim it when Dewey & Blake were erecting their mill and the defendants were making their improvements? And,
4. Do the tax sales affect in any way the rights of the plaintiff?
These questions will be considered in their order.
I. In order to show his right to the easement, it became necessary for the plaintiff to prove title in himself to the land to which the easement was appurtenant. The land is described in one count of the declaration; but as thus described, the evidence is very clear and conclusive that the plaintiff does not own the major part of it. The most of it was land that Hulbert never owned; and when he conveyed to ICetcliam, his deed to that' extent was inoperative. If therefore the easement in dispute was appurtenant to the land -particularly described in this count, the action could not be maintained, because there must be another owner to a part of the land who would be a necessary party.
But there is evidence in the case from which the jury might perhaps be justified in finding that the description contained in the deed from Hulbert to Ketcham, instead of being in the abbreviated form given in the abstract which was put in evidence, was in fact identical with the descrip tion in a subsequent deed given by Ketcham to one Emery, which was as follows:
“ All that certain piece or parcel of land situate, lying and being in the village of Grandville, bounded and described as follows, viz.: Beginning at a point in said village where the north line of Prairie street intersects the west line of the canal or mill-race running across said street; thence running westerly along the north bounds of said Prairie street two hundred feet; thence north two hundred feet; thence east two hundred feet to the west bounds of said canal or mill-race; thence south along the west bank of said canal or mill-race two hundred feet to the place of beginning; and also the mill and buildings thereon situate, and the right of using so much water from said mill-race as may be necessary to propel four runs of stones to be used for the ordinary purposes of grist and flour mill. The column of water to be used may be three cubic feet, under a pressure of eight feet head. Also the use of a street of the ordinary width of streets in said village for access to and egress from said mill; also the use and enjoyment of five feet of land around said premises for light and air, and also sufficient land for a tail-race from said mill to the creek as now excavated.”
If the jury should reach that conclusion, then it would be manifest that there was an inconsistency in the particulars given in the descriptive part of the conveyance to Ketcliam, and one part or the other was erroneous. The mill was not upon the two hundred feet square which was particularly-described, and either that description, or that of the mill itself, must be rejected from the deed as presumably inserted in error, since it is manifest 'that it was not the purpose to convey both. Under such circumstances the general rule requires that .that particular should be rejected, as presumably erroneous, which contains the lesser elements of certainty, and in respect to which a mistake would be least likely to occur. This rule I think would require us to reject the particular description by metes and bounds. It is true it seems very strange that the two hundred square feet should be erroneously located when such boundaries are given as a mill-race and a street, but this is in part explained by evidence which shows that the street was not at that time opened, nor the mill-race extended so far as the land supposed to be conveyed. The village of G-randville was in fact little more than a village on paper, and an error in locating lands on the line of one of its supposed streets was not therefore very remarkable. But it would have been astonishing if Hulbert, intending only to convey two hundred feet square of unoccupied grounds, should by mistake after describing it, add the words “ and also the mill and buildings thereon situate.” It is almost impossible to conceive of such a mistake being committed; and the just conclusion is that it was the mill the deed was intended to convey, and not the parcel particularly described. White v. Williams 48 N. Y. 344. The parties themselves so interpreted the conveyance, for Hulbert gave possession to Ketcham at the time. I think, therefore, the action might be maintained on the counts which only averred the plaintiff’s ownership of the mill-site, but did not particularly describe it.
II. The right to the easement was not lost by the mere neglect to assert, use and enjoy it for the period of twenty years. There is no doubt of this upon the authorities. The easement was created by grant as an appurtenance to the mill; and there were no conditions or limitations attached which rendered its use necessary to its continuance. The grant was perpetual, and without conditions; and therefore the privilege granted would continue indefinitely whether the grantee did or did not avail himself of it. An accepted grant cannot be waived or abandoned; and the neglect of the grantee to enjoy the easement would be no more significant in its bearing upon his rights than the neglect to enjoy the freehold to which the easement was appurtenant. Arnold v. Stevens 24 Pick. 106; Bannon v. Angier 2 Allen 128; Hayford v. Spokesfeld 100 Mass. 491; Owen v. Field 102 Mass. 114; Barnes v. Lloyd 112 Mass. 224; Taylor v. Hampton 4 McCord 96; Elliott v. Rhett 5 Rich. 405; Corning v. Gould 16 Wend. 531; Wiggins v. McCleary 49 N. Y. 346; Hall v. McCaughey 51 Penn. St. 43; Ward v. Ward 7 Exch. 838; Carr v. Foster 3 Q. B. 581; Crossley v. Lightowler L. R. 3 Eq. Cas. 279; s. c. on appeal 2 Ch. App. 478; Cook v. Mayor L. R. 6 Eq. Cas. 177.
III. Neither was the easement lost under the statute of limitations. There was no evidence of any occupation of the land in hostility to the easement, or of any distinct denial of the easement until the defendants tore out the old dam There was therefore nothing that could be regarded as an enjoyment adverse to the easement prior to that time. Cooper v. Smith 9 S. & R. 26.
IY. The question of estoppel which the parties- raise does not seem to me entirely free of all difficulty. The point made by the defendants is this: that Wilder, owning the mill-site and appurtenant easement, when he saw Dewey & Blake putting up a valuable mill which would be worthless if the easement was insisted upon, and afterwards when he saw defendants making costly improvements to the mill, was bound in good faith to the parties thus expending their moneys, to notify them that the easement was still claimed; and having failed to do this, he and his grantee must be held estopped from claiming the easement now. There is very great reason in this position, provided Wilder was aware at the time of the expenditures that the enjoyment of the easement would be incompatible with the operation of the Dewey & Blake mill; which is not made so clear by the evidence as it should have been if the fact was so. But we have held repeatedly that title to land cannot pass by estoppel: Hayes v. Livingston 34 Mich. 384; Nims v. Sherman 43 Mich. 45; White v. Hapeman, 43 Mich. 267; Showers v. Robinson 43 Mich. 502; and if the rule applies to the extinguishment of easements, the point made by defendants must be considered not well taken. In Maxwell v. Bay City Bridge Co. 41 Mich. 453, 467, several cases are referred to in which it has been held that the owner of lands may be estopped from revoking a parol license, where his conduct has rendered the revocation inequitable; and the effect of the estoppel would be to create an easement. If an easement may be created by estoppel, it may certainly be extinguished by estoppel; and in Arnold v. Cornman 50 Penn. St. 361, it was decided, that if one having a right of way across the land of another, stand by and, without objection, permit the owner of the land to erect a building across it, he will be estopped from objecting afterwards. No doubt the application of such a rule would accomplish substantial justice in a .great many cases.
But it is important that we understand precisely what the easement is in respect to which an estoppel is claimed. The plaintiff assumes that it is an easement for water-power ■appurtenant to certain described lands, and that he has a right to make it available at any time, not exceeding its limitations by the grant. The mill which was upon the land when the easement was created burned down, and for thirty-four years it was not rebuilt, nor has there been evidence of ■an intention to rebuild. It is true that after the dam had been washed out, it was rebuilt in 1850, but it does not ■appear that it was with any purpose or expectation to make use of the power on the site of the old mill. There has therefore been no practical assertion of a right to the easement for thirty-four years; no enjoyment of it, and no indication of a purpose to enjoy it. The old site has remained unimpx’oved, and the claim to the easement exists, not as a right beneficial in its use to the plaintiff, but as a bax'ren right which the plaintiff may interpose to the profitable use of the power by others.
But it was necessary to the plaintiff’s position that he ■should make out a right of land with the easement as an appxxrtenance. This he has wholly failed to do. It is conceded that the two hundx'ed feet square particxxlarly described in the deed to Ketcham was not conveyed at all, and plaintiff relies now upon the conveyance of the mill eo nomine. No doubt if he had applied in equity for a correction of the deed, he might upon a proper showing have had it corrected and the land located, but he has been content to rely upon the grant of the mill as the principal; the dominant tene ment to which the easement was attached; and he can claim at law nothing more.
Now without doubt a grant of a mill will carry the soil - under it; and to that extent the Ketekam deed was effective. But a grant of a mill with an easement for its enjoyment is obviously a very different thing from a grant of land with an easement for its enjoyment for mill purposes. The latter may be made available at any time and by different mills in succession. But the grant of a particular mill with an easement for its enjoyment is a grant of the easement only so long as it can be used with the mill. The easement is. appurtenant to the building, and when the building ceases to' exist, the easement comes to an end; not by abandonment or extinguishment, but by the inherent limitation of the grant itself. We must suppose that this was the intention of the parties when in making the grant the one conveyed and the other was content to receive a conveyance of the ■mill only. “ Such a grant, in its enjoyment, is as permanent only as the creation of which it is an incident, and necessarily as unstable. Like the natural phenomenon of the shadow cast by a substance, it vanishes when the substance disappears.” It “must necessarily expire with the principal, and cease when that ceases.” Thompson, L, in Jessup v. Loucks 55 Penn. St. 350, 362. It is like the grant of an easement to take water for a canal; it must cease when the canal ceases. The National etc., Co. v. Donald, 4 H. & N. 8. The question therefore is not one of estoppel to the enjoyment of an easement, but of the existence of an easement; and the plaintiff fails because, upon his own evidence, the easement has terminated.
Y. In the view taken of the case upon the last point, the tax titles become unimportant, and no expression of opinion will be made concerning their effect.
The judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
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Marston, C. J.
We are of opinion that the declaration in this case was sufficient in substance. The part omitted, and which was contained in Carter v. Glass 44 Mich. 154, adds nothing to the substantial averments. This whole matter has so recently been fully discussed in this court and the distinctions pointed out, that any extended remarks in the present case are wholly unnecessary. Carter v. Glass 44 Mich. 154; Briggs v. Milburn 40 Mich. 512; Norton v. Colgrove 41 Mich. 544.
The judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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Graves, J.
This case originated in an application by Bourassa in the court of probate for a final settlement of his account as guardian for Bondie. The proceedings there seem to have been ex penóte, and the account presented by Bourassa against his ward was allowed in full at $603.18; and Bondie appealed to the circuit court. Each party there brought forward an itemized account against the other and some kind of a case, was made up for trial, and a hearing was had before a jury as in actions at common law. The account produced by Bourassa was treated as an entire claim in assumpsit and the account exhibited by Bondie was considered as in the nature of set-off.
Among the items charged by Bourassa was a claim for board and clothes furnished to Bondie from 1860 to 1865 and being eight years prior to the commencement of the guardianship. The jury gave their verdict that there was due to Bourassa for moneys laid out and expended by him as guardian, for Bondie’s board, maintenance, support and clothing over and above all claims of every name and kind which Bondie had against Bourassa the sum of three hundred and fifty dollars, and that the same was due the said Bourassa upon his final account as guardian of said Bondie over and above all claims of every kind which said Bondie had against Bourassa.
There was no finding in regard to what items or demands were allowed or disallowed, although the sum awarded was nearly half less than the allowance by the probate court. The judgment entered is the ordinary judgment that the plaintiff recover, but it directs recovery of the “ estate ” of Bondie and also of Bouchard and Riopelle, the sureties in the bond for appeal.
The judgment is erroneous in form. If the case had been so shaped and conducted as to authorize a proper determina, tion in the nature of a judgment, it should have assumed the form of an order showing the allowances and disallowances and providing for a transmission of the determination, by certificate, to the courts below. The inclusion of the sureties in' the judgment was unauthorized: Willard v. Fralick 31 Mich. 432.
There was evidence tending to show that during the period from 1860 to 1865 for which Bourassa claimed to have provided Bondie with board and clothing, the latter was an admitted member of his grandmother’s family and provided for in that character, and hence not liable to be charged by Bourassa for board and clothes. The court declined to allow this to be inquired into by the jury. The ruling was improper; but a more serious point is apparent here. If any liability arose from Bondie to Bourassa on account of the board and clothing from 1860 to 1865 it was a liability for a debt for necessaries and not a claim growing out of the relation of guardian and ward, which did not arise until several years later; and if it be admitted that under the doctrine of retainer it would be competent for a guardian to make the matter of a debt incurred to him by his ward before the guardianship a subject of adjustment on final accounting, it is nevertheless certain that Bourassa can derive no benefit from the principle.
The debt in question, in case there was any in Bourassa’s favor, was barred by the statute of limitations nearly two years before the guardianship, and the amount would more ' than cover the allowance by the jury. Further detail is needless. The nature of the proceeding to settle a guardian’s account has been entirely misconceived. The subject was very fully considered and explained in Gott v. Culp, 45 Mich. 265, and it is only necessary to direct attention to the opinion there given.
The proceeding in the circuit court must be reversed with costs and a new hearing allowed.
The other Justices concurred. | [
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Graves, J.
The defendant holding the office of supervisor refused to execute the statute of 1877 (Public Acts of 1877, p. 239) and for such delinquency was prosecuted and convicted under the eighth section. The case was then certified to this court for review on exceptions. The scheme embodied in the statute is intended to compel those who own and keep dogs to provide a common fund for repairing or at least mitigating such losses as are inflicted by those animals by wounding and destroying sheep. It was not necessary for the face of the enactment to explain the proneness of dogs to such mischief. The fact is notorious and the mention of it as an incentive to the legislation would have been useless.
The exceptions are all grounded on a single assumption. And it would be needless to inquire as to how far the inferences and secondary propositions are authorized. The fundamental proposition is that the exaction attempted by the statute is a tax within the meaning of article 14 of the Constitution ; and taking this for granted it is then argued that it is not a specific tax, but a tax falling under rules and principles applicable to other taxes; and not being laid according to any mode of uniformity nor assessed according to the cash value of the property, the imposition is unconstitutional. It is also suggested that dogs are included • in the mass of property annually taxed under the general law and that it is not competent to select one species of property and subject it to double tax. It is unnecessary to point out the various inaccuracies of this reasoning. The foundation on which it proceeds is fallacious. The supposition that the statute is an emanation from the taxing power, in the sense in which that power is regarded by article 14, is a mistake.
The enactment does rot appear to be for revenue nor to raise money by way of tax as that expression is there made use of. A tax in the view of that division of the Constitution is a burden, charge or imposition for public uses (People v. Salem 20 Mich. 452; Matter of the Mayor 11 Johns 77) and not a mere regulative expedient, as this is, to favor the repression of private mischief and promote the redress of private injuries. And it is plain therefore that the act can neither be brought within article 14 for the purpose of sustaining it or for the purpose of overthrowing it. It is a species of. legislation which pertains to another department of power, and where the State in pursuing its duty to accommodate as far as practicable the desire and the right to keep dogs, to the more beneficial right of breeding and keeping sheep, has seen fit td apply the method marked out in this statute. The act is an exertion of the police power, and no reason is perceived for denying its validity. In consequence of the acknowledged excellence of some of their traits and their remai’kable attachment to mankind, and on account, at the same time, of their liability to break through all discipline and act according to their original savage nature, and because also of their liability to madness, it has been customary always to make dogs the subject of special and peculiar regulations. The evidence found in our own statutes is very full: Act of 1805, 1 Terr. L. p. 69; Act of 1825; Code of 1827, p. 481; Rev. Stat. 1838, p. 220; Rev. Stat. 1846, p. 201: Act 161 of 1850, Sess. L. p. 155; Act 210 of 1863, Sess. L. p. 362; Act 205 of 1865, Sess. L. p. 340; Act 195 of 1873, Sess. L. vol. 1, p. 483.
Characteristic legislation has been expounded in other states, and the authority for it has been liberally maintained under the power referred to: Blair v. Forehand 100 Mass. 136 ; Carter v. Dow 16 Wis. 298; Tenney v. Lenz id. 566; Mitchell v. Williams 27 Ind. 62; Morey v. Brown 42 N. H. 373; Woolf v. Chalker 31 Conn. 121; Ex parte Cooper 3 Texas. C. App. 489.
As tlie charge laid on the owners of dogs is a pecuniary burden imposed by public authority, it partakes no doubt of the character of a tax, and for many purposes might be so-spoken of without barm. But no accession of public revenue, either general or local, is authorized or aimed at. The end sought is different. The purpose is to prescribe a regulation under which, dogs as animals dangerous to sheep and of far less public utility can alone be held, and which if carried out will tend to discourage an undue increase of dogs, and at the same time will afford new protection against the effects of the mischief to which they are most given. As no sufficient reasons are disclosed for sustaining the exceptions they must be overruled, and the circuit court is advised to proceed pursuant to law.
The other Justices concurred. | [
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Cooley, J.
The defendant in error, an infant, brought suit against Goodsell, who is a physician, for malpractice in setting her arm. Goodsell had treated the injury as a fracture of the humerus, but after two or three weeks it was discovered that there was a dislocation at the elbow, and another physician was called in, by whom the dislocation was properly treated. There was a fair question on the evidence whether Goodsell had been laboring under any mistake in his treatment; whether the fracture for which he treated the child had not existed in fact, and whether the child had not caused the dislocation by engaging in rough and violent sports while her arm was progressing favorably under the physician’s treatment. The jury, however, found against him, and he brings error.
The printed record contains upwards of two hundred pages. Many exceptions are taken, some to the admission or rejection of evidence, but the majority to the instructions given or refused. I find no error in the rulings on evidence. The defendant offered in writing a number of requests for instructions, all of which were refused and the judge gave instructions which he evidently meant should cover the whole case. I think it proper to copy from the bill of exceptions the whole of these instructions, with the exceptions that were taken to them as there set forth:
“ The said circuit judge then on his own motion instructed the jury as follows, to-wit:
“ There is no question made, in fact it is conceded, that the defendant was a professed and practicing physician and surgeon and that he held himself out to his neighbors and the country round about as a physician and surgeon. As-such he undertook to treat the plaintiff when called to-attend her, early in October, 187% for an accident which, had befallen her, resulting in an injury to her arm.
“ To which opinion and instruction the counsel for the defendant did then and there except.
“ The said circuit judge further instructed the said jury :
“ And the plaintiff claims in her declaration she was not treated in a careful, skillful and proper manner, but that the doctor’s treatment of her was negligent, careless and unskillful, and she claims to have sustained injury by reason of such careless, unskillful and improper treatment, and she seeks to recover of the defendant damages for the injury she has thus sustained; the doctor denies that he has so treated her.
“ To which opinion and instruction the counsel for the defendant did then and there except.
" The said circuit judge further instructed the said jury :
“ The plaintiff’s case must be made out by a fair preponderance of proof, and all I can do to aid you in determining this matter is to give you such few general rules relative to the duties and obligations of the doctor as the law has prescribed, and these being given you, the facts in the light of these legal rules are for you to determine.
“ To which opinion and instruction the counsel for the. defendant did then and there except.
“ The said circuit judge further instructed the said jury :
“ 1st. Then there was an implied promise on the part of the doctor that he himself possessed that reasonable degree of learning, skill and experience which is ordinarily possessed by members of the medical profession, and which is-ordinarily regarded by the community and by those conversant with the profession as necessary and sufficient to-qualify him to engage in the business.
“ To which opinion and instruction the counsel for the-defendant did then and there except.
“ The said circuit judge further instructed the said jury :
“ 2d. The doctor undertook and promised impliedly, at. least, to use reasonable and ordinary care and diligence and Ms best judgment in the exertion of Ms skill and the appli cation, of his knowledge to accomplish the purpose for which he was employed. In determining what is ordinary skill, regard must be had to the improvements and advanced state of the profession at the time the patient was treated.
“ To which opinion and instruction the counsel for the defendant did then and there except.
“ The said circuit judge further instructed the said jury:
“ If you shall conclude from all the evidence that this defendant did not use ordinary skill, care and diligence, and that damage has resulted to the girl on account of such want of ordinary skill, care and diligence, then you should find for the plaintiff; but if you conclude that the doctor did use ordinary skill, care and diligence in Iris treatment of the injury, then you should find for the defendant.
“ To which opinion and instruction the counsel for thé defendant did then and there except.
“ The said circuit judge further instructed the said jury:
“ And if the injury to the plaintiff resulted from any ■other cause than the cause alleged in this case, as, for instance, from an accident after defendant’s care of the girl ■ceased, then, ot course, the defendaxrt is not liable; or, in ■other words, if the plaintiff recover, it must be for the cause alleged in the declaration, and not for any other or different cause.
“ To which opinion and instruction the counsel for the defendant did then and there except.
“ The said circuit judge further instructed the said jury :
“ If you shall conclude that the plaintiff is entitled to a verdict, the amount will be such fair and reasonable sum not exceeding $5000, that being the amount claimed in the declaration, as will fairly compensate the plaintiff for her suffering, and the injury done her; and in determining the amount, you will take into account all that has been permitted to go to you by way of evidence. I do not choose to magnify any particular fact, but each and all are for you to consider.
“ To which opinion and instruction the counsel for the ■defendant did then and there except.
“ The said circuit judge further instructed the said jury:
“ The case is not one to be determined by sympathy or pity for one side or the other.
“ To which opinion and instruction the counsel for the defendant did then and there except.
“ The said circuit judge further instructed the said jury:
“ If the doctor, in his treatment of the girl, exercised reasonable and ordinary care, skill and diligence, he has •done all that the law requires of him; if he has done less • than this he is liable for the damages resulting.
“To which opinion and instruction the counsel for the •defendant did then and there except.”
One lias but to glance at the several paragraphs of the instructions as they are here excepted to, to discover that some of them are mere statements of fact, others the statements of principles which no one does or can dispute, while a number are instructions distinctly in the defendant’s favor. Yet indiscriminately they are all excepted to, and errors of law are assigned upon them. Thus excepted to they become ■a part of the printed record from which the defendant in •error is to hunt out the faults which he may infer or guess the plaintiff in error will rely upon. The judges also, when they receive such a record, must guess out as best they may what it is in the rulings of the court that is supposed to constitute substantial error. Thus the purpose of the exceptions and assignments of error, which is to bring distinctly to the mind of counsel and court the supposed faults, is wholly defeated. And if the court in charging the jury inadvertently fell into error, this method of indiscriminate ■objection was well calculated to prevent his making the discovery. The practice is unfair to the trial judge and to the opposing counsel, and imposes unnecessary labor upon the appellate court. I do not think the plaintiff in error is •entitled to any further benefit of such exceptions than he would have been from one general exception to the whole •charge; and in such a case if any part of the charge is correct the exception fails.
The judge, however, did commit an error subsequent to the charge, of which the plaintiff in error is at liberty to take advantage. The record states that after the jury had been absent for a time they came in and stated “■ they had not agreed, but stood eleven to one and divided on $200.” The judge in reply told them “ If that is the only difference it would be better for the county and the parties on both ■sides that one or both sides yield so as to come together. It would be unfortunate for all to have a disagreement when the difference is so small,” and he asked them to get together if possible.
It is no doubt true that juries often compromise in the way here suggested, and that by “splitting differences,” they sometimes return verdicts with which the judgment of no one of them is satisfied. But this is an abuse. The law contemplates that they shall,, by their discussions, harmonize their views if possible, but not that they shall compromise, divide and yield for the mere purpose of an agreement. The sentiment or notion which permits this tends to bring jury trial into discredit and to convert it into a lottery. It was no doubt very desirable to the public and to the parties that the jurors should agree if they could do so without sacrificing what any one of them believed were the just rights of the parties; but not otherwise.
The judgment must be reversed, with costs, and a new trial ordered. The condition of the record is such that we feel warranted in directing that, in taxing the costs, only one-half the cost of printing the record shall be allowed.
> The other Justices concurred. | [
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Marston, C. J.
The complainant obtained the right for an examination of the witnesses in this case in open court. No evidence was introduced on the part of defendant. Some of complainant’s witnesses were sworn and examined in a room adjoining the court room but not in the presence •or hearing of the judge. Defendant’s solicitor assented to this testimony being so taken, while her counsel objected and neither appeared nor cross-examined these witnesses. One witness was examined before the circuit court commissioner, and the signing of the testimony so taken was orally waived by the respective parties. All the above testimony is now •objected to by counsel for defendant.
Where witnesses are examined before a commissioner the testimony should be read over to them for correction and authentication by the signature of the witness. This is a safeguard against mistakes in reducing the testimony to writing that should not be waived to suit the convenience of counsel or witnesses, but only in cases of absolute necessity. In cases of conflict between witnesses, where the depositions are not signed, the court cannot be sure that the evidence would not have been corrected or been different if read over to the witness, corrected and signed, or that the conflict is not caused by ■the mistake of the commissioner in reducing the testimony as given. We should not however reject such evidence, but must receive it with very great caution, and where it is in conflict with other evidence properly authenticated, we must give the latter a controlling effect: Godfrey v. White 43 Mich. 171.
Even if we strike out the testimony not taken before the commissioner and not in the presence or hearing of the judge, which we are inclined to think should be done, there is still enough left upon which the relief prayed for should be granted.
The decree will be affirmed.
The other Justices concurred. | [
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] |
Cooley, J.
The bill in this case is filed to restrain the collection of the balance alleged to be due on a judgment, rendered in the circuit court for the county of Monroe, in favor of defendant and against the complainant in May, 1872, for the sum of $10,751.03 and costs of suit. The litigation has twice before been in this court. Compton v. Blair 27 Mich. 398; Blair v. Compton 33 Mich. 414.
The controversy now relates to the application upon the judgment of a certain draft, drawn by Compton, as president of the West Virginia Oil & Oil Land Company, on J. II. Carrington & Co. of New York city, dated July 22, 1873, and drawn at two months for the sum of $3120. Complainant claims that this draft should be applied, and defendant resists the claim.
This draft, it appears, was handed over to the attorneys who had procured the judgment, on the day it bears date, and was by them receipted with other drafts, at the time when an execution was in the sheriff’s hands and after a levy had been made. The receipt specifies that “If one or all of these drafts are accepted and paid, they are to apply, so far as paid, in satisfaction of an execution in this cause now in the hands of Philip Nadeau, the late sheriff. If any one of them is not accepted, or if any one of them is not paid at maturity, the plaintiff in this case is at liberty to take such steps as he may be advised to enforce tbe collection of tbe judgment in tbis cause. It being distinctly understood tbat these drafts are only collateral security for tbe payment of the judgment in tbis cause, and the ben now bad by tbe levy of execution upon tbe property of tbe defendant is in no way released or abandoned, but is beld to await tbe acceptance and payment of tbe above-described drafts.”
Tbe draft in question was accepted by tbe drawees, but when it fell due was protested for non-payment. Question is made in the case whether tbe drawer was ever notified of tbe non-payment, but tbe evidence of notice is satisfactory to our minds. It was subsequently placed in tbe bands of Judge Joseph Casey, who was principally interested in tbe judgment, and was by him forwarded to an attorney in New York with instructions to take prompt steps for cobection. Tbe instructions were not closely followed, but tbe record discloses efforts by tbe attorney to obtain payment without suit, which continued until tbe spring of 1875, when J. H. Carrington & Co. failed. Tbe reason suit was not brought is' now suggested to be, because tbe attorney bad lost the draft, a fact which be did not at the time make known to any of tbe parties.
If by tbe failure to collect tbis draft, Compton or tbe company which drew it could be loser, there would be some ground for claiming, on tbe facts so far stated, tbat tbe creditor bad made it bis own. But tbe evidence is entirely satisfactory tbat tbe draft was accepted for tbe accommodation of the drawer, and tbat tbe drawees bad no funds with which to meet it, and were never put in funds afterwards. Carrington so testifies, and bis evidence is much more fub, expbcit and satisfactory than tbat of Compton, who undertakes to dispute him. But it also appears tbat Compton distinctly recognized bis babibty for tbe amount represented by tbe draft long after it bad been protested; tbat in May foHowing be promised to give good paper in place of it, and tbat a month later be was endeavoring to procure a renewal. After tbat time there was never any offer on bis part to take it up, and never any new obbgation assumed by Blair or Casey to press it to collection for his benefit, if indeed it was collectible.
It is also claimed by Compton that Blair has estopped himself from now treating this draft as unpaid, by various representations made at different times by his attorneys that the draft had been paid, or that Compton need -give himself no further concern on the subject, or other words of similar import. If such statements were made and were relied upon by Compton to his injury he would undoubtedly have an equitable claim to relief. But is clear enough that Compton never supposed this draft had been paid, and never lost anything by reason of statements made by the attorneys, upon which he now relies by way of estoppel. There were undoubtedly statements made at different times by Mr. Norris and Mr. Willits, acting as attorneys in the collection of the judgment, which a stranger to the facts might have understood as Compton now claims they should be; but they were made either while the collection of other drafts was the matter immediately in hand, or at a time when the judgment was apparently satisfied by a sale which was afterwards set aside. Compton was never misled by them, for he knew quite as well as the attorneys did that the draft had never been paid. Casual remarks are not to be made to operate as an estoppel when nobody is misled by them and nobody harmed. Ferguson v. Millikin 42 Mich. 441. The only fact Compton can claim not to have known was the loss of the draft; but as he never called for its surrender to him, he cannot claim that the loss affected his action. He might have raised a question upon this fact if he had called for the draft to bring suit; but this he failed to do, and Carrington & Co., who seem to have been more willing to reach an adjustment than he was, instituted suit after a time for a large sum which they claimed the Oil Company owed them.
When the court of chancery adjudged that complainant had no equities, a decree was made that defendant pay the sum found due on the judgment which was computed at $6250. A technical objection is now made to this decree, that the court should have ordered the Carrington draft delivered up, or, if it was lost, that an indemnifying bond be given by defendant. No doubt sucb a bond would have been ordered if defendant bad been tbe moving party; but be ah’eady bad bis judgment and Compton bad failed to make out a case for restraining its collection. It was not, under sucb circumstances, a necessary condition to tbe collection of tbe judgment that Blair should give a bond of indemnity: tbe mere dismissal of the bill without further order would bave left him at liberty to proceed in tbe collection of bis judgment. As it is now more than seven years since tbe draft was protested for non-payment, it is not likely any party to it can suffer from its non-production. And as there is nothing in tbe case to indicate that this point was ever made before, we do not think it entitled to notice now.
Tbe view we take of tbe facts renders it unnecessary to consider tbe law points made on behalf of complainant.
Tbe decree must be affirmed with costs.
Tbe other Justices concurred. | [
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Graves, J.
July 17, 1878, the insurance company issued a policy to James J. Miller, the plaintiff’s husband, to insure for the term of one year in the sum of $650 a two-story framed building situated on leased land and standing on blocks, and not fixed to the freehold. April 27, 1879, the building was destroyed by fire and on the first of June thereafter the assured assigned his claim for the loss to his wife, the plaintiff. The company refused payment and Mrs. Miller brought this action to enforce it. The case was tried by a jury and they found for the defendant corporation.
Among other stipulations in the policy it was provided that it should be void “ if the interest of the assured be any other than the entire, unconditional, free and unencumbered ownership of the property and is not so expressed in the written portion of the policy,” or “if the premises hereby insured become vacated by the removal of the owner or occupant without immediate or written notice to the company and consent thereto endorsed.” Nothing was inserted to qualify the scope or force of the clause concerning title or to show that the interest of the assured was any other than the entire, unconditional, free and unencumbered ownership. At the time of issuing the policy the building was occupied, but it became vacant some five days prior to the fire and so remained until it was destroyed, and no notice was given to the company.
The defence was based on the foregoing stipulations, and if the facts were such as to furnish an answer to the action under either of them no discussion of the other will be necessary. The provision in regard to title stands first and is perhaps most important, and no one can fail to observe that it is much more sweeping and exclusive than the generality of such conditions, and the difference is so well marked that many decisions which have been made on stipulations of the same general nature can have no application.
The substantial facts respecting the state of the title at the time of insurance are not controverted. In April, 1876, the building was owned by James J. Miller, the plaintiff’s husband and person assured. His nephew, James J. Miller,. Jr., had been carrying on business in the building and had received pecuniary assistance through his uncle from the plaintiff. An arrangement was then made by which the plaintiff’s husband, James J. Miller, Sr., transferred an undivided half of the building to his nephew, James J. Miller, Jr., and the latter gave to his aunt, the plaintiff, a mortgage on said undivided half to secure her the re-payment of the money she had advanced to him, being $500. The mortgage also covered other property and by its terms $250 were to be paid by the first day of November, 1876, and the remainder by the first day of November, 1877. It has not been foreclosed.
August 14, 1876, Miller, Jr., the nephew, made an assignment for the benefit of his creditors to Charles Newman and the undivided half of the building which he owned and which stood mortgaged to the plaintiff was included. Newman took possession. It hence appears that at this period the plaintiff’s husband owned one undivided half of the property, and that the other undivided half was in Newman, the assignee, subject to the encumbrance upon it held by the plaintiff. In this state of things the plaintiff’s husband applied for the insurance and the agent refused to entertain the application and gave as a reason, as the plaintiff’s husband testifies, that the title “ would have to be rectified,” and that he would not insure the property “ until I got it straightened out.” The applicant then went away to get the title “ straightened out ” and subsequently returned and informed the agent that he had succeeded and the policy was issued. The proceedings taken to concentrate and disencumber the title were explained by Miller on the trial in this way: He testified that he called on Newman and “ got, ” as he expressed it, “ Newman’s rightand that Newman told him that “ it was not worth his while to go onthat he then had a conversation with his wife, the plaintiff, in which he said to her that it was necessary for him to have her interest in the prbperty to get it insured; and she replied, “ AH right; you can have itand this is substantially the plaintiff’s version of the circumstances relied on to show that at the time of the insurance her husband was vested with the “ miAre, unconditional, free and wnmeumberecl ownership ” of the building.
There was no writing to attest any transfer or surrender on the part of Newman or to show a conveyance from the plaintiff to her husband. But it was not indispensable that there should be. For the purpose of combining in himself the entire free and unencumbered ownership it was necessary that the plaintiff’s husband should get in the right and title possessed by Newman' and the mortgage interest possessed by the plaintiff, and these results, although capable of being effected without writing, could not be worked out except by transactions containing the elements necessary to make them binding, and here occurs a manifest difficulty. There is a total want of consideration.
If we understand the plaintiff’s husband as testifying that Newman gave up the assigned interest to him, then so far as the record discloses there was no consideration to support the arrangement and it had no force. But if Newman abandoned the property to the plaintiff as mortgagee, her interest was not increased and could not be except through purchase on foreclosure and no foreclosure has been had. The legal title must have continued in the assignee. But suppose the meaning was that the property should be applied on the mortgage, (a view hardly possible,) it seems not to have been acted on. It was not applied. There has been no recognition of anything of that kind. But whether another interest was or was not added to that held by the plaintiff under her mortgage it was necessary that her husband should be positively vested with whatever interest she had. His description of the transaction relied upon as having legally conferred upon him that interest has been noticed, and we observe that it consisted of mere words. No mention of any consideration was made and the transaction had nothing in it to bind him as vendee or assignee or her as vendor or assignor. It follows that according to the undisputed faetss the entire, unconditional, free, and unencumbered ownership of the building was not in the assured at the time of the insurance and that the policy was therefore not enforceable against the company. The other question becomes immaterial.
The result reached below was correct and the judgment should be affirmed with costs! '
The other Justices concurred. | [
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] |
Graves, J.
Mr. Ooots as sheriff held an execution in favor of Don M. Dickinson and Levi T. Griffin and against Henry "Williams, and it being deemed expedient by the judgment creditors that certain goods in the hands of one Coomer should be seized they gave Mr. Coots their bond of indemnity, in which the plaintiff in error and one Cohen were joined as sureties. Mr. Coots collected the execution out of the goods and paid the amount to Griffin & Dickinson. But Coomer sued him for the property so taken and eventually recovered. An execution being issued to the coroner Mr. Coots employed Mr. Conely to take the necessary steps for his protection and the latter immediately called on Mr. Griffin and required that he should provide the proper indemnity as contemplated by the bond. An arrangement satisfactory to Messrs. Griffin & Dickinson, the principals in the bond, and to Mr. Coots, the obligee, was then effected. Mr. Farnsworth, the surety, had no knowledge of it. Mr. Coots paid the execution in favor of Coomer, and his attorney Mr. Conely commenced this action against Farnsworth alone on the bond. The court gave judgment for Coots and Farnsworth brought error.
The chief questions may be traced to the arrangement just mentioned. There are intimations that the actual relations between Messrs. Griffin & Dickinson and Farnsworth were otherwise than as stated in the bond, and that in substance the latter was principal whilst their position was rather that of sureties. But no such suggestions can be regarded. There can be no construction of the case which does not admit that Messrs. Griffin & Dickinson were principals in the bond and Farnsworth a surety.
By the arrangement Messrs. Griffin & Dickinson made their check for the indemnity and,gave it to Coots’ attorney, Mr. Conely, and he immediately” commenced this suit in Coots’ name against Farnsworth, their surety, for the same amount. The understanding was that this action in Coots’ name should be instituted and'-carried on to enforce collection if practicable of the amount in question from Farnsworth, and that Conely should keep the check and dispose of it finally as the event of the attempt to force collection from the surety should render necessary. If the money should be drawn from him the check would not be needed, and could be restored or replaced. But in case of failure it would be available.
There was evidence for the jury to consider, that the arrangement excluded the bringing of an action against Messrs. Griffin & Dickinson, the principals, and went so far also as to provide that the proceedings should be in their interest. It is not intended to say that there was testimony of express statements of these facts. What is meant is that the details given, together with the reasonable inferences, afforded the evidence which might properly be considered.
In view of this testimony and of the conceded facts as to the nature of the arrangement mentioned, Farnsworth’s counsel offered for submission the following two special questions: “ Third, Is not this suit brought for Griffin & Dickinson’s benefit, and not for that of Coots ? Fifth, Was not this check received with the understanding that Griffin & Dickinson should not be sued on the bond ?” The judge refused to leave them to the jury.
As the general charge did not present these points, was it eiror to decline them? We think it was. Had the jury answered them in the affirmative the court could not properly have given judgment for Coots. It would then have appeared that through agreement between the creditor and the principals, of which the defendant surety had no knowledge, the former had debarred himself from proceeding against the principals; that as against the parties subject to the primary duty to make payment, and on whom it rested to protect and indemnify the defendant, as the plaintiff was aware, the obligation had been rendered practically nonenforceable.
It would be difficult to find a more striking instance of a bargain between the principal and creditor for an advantage on behalf of the former than would have been presented. It is needless to trace out the ways in which such a transaction would be obnoxious to the law of suretyship. A “ surety engages only to make good the deficiency,” and an arrangement between his principals and the creditor without his privity whereby they are no longer suable by the creditor on the contract is a substantial change of the transaction and a prejudicial alteration of its incidents. It becomes unnecessary to refer to other questions.
The judgment should be reversed with costs and a new trial granted.
The other Justices concurred. | [
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Campbell, J.
The bill was filed in this cause to foreclose a mortgage made on the first day of February, 1859, by Egbert Dewey and Joseph Blake, and wives, to Hansom E. Wood, for $4000, and interest, payable in four instahnents on the first day of February in each of the years 1861,1862, 1863, 1864. Wood assigned October 10, 1859, to Harmon Noble and Belden Noble, and 'On the 23d of September, 1867, their survivor assigned to complainant. The Noble assignment was recorded on the day of its date, and again in December, 1876, the original record having been destroyed by fire. The assignment to complainant was also recorded in December, 1876.
Some question was made on the argument whether there was any proof of the earlier record, but the original mortgage with the assignment indorsed thereon was produced, having the certificate of registry required by § 4229 of the Compiled Laws, which is evidence of such record.
The defence is made by several subsequent purchasers and incumbrancers, claiming that the mortgage was paid before they obtained their interests. This defence is rested on various facts and reasons, some of general and some of special application. As the foreclosure was begun within a little over thirteen years after the maturity of the last instalment there is no room for the claim that the security was cut off by delay.
The payment in fact is put chiefly on the ground that one Horace O. Weston, a brother-in-law of complainant, purchased half of the premises in controversy in 1863, of Joseph Blaise, and the other half of Dewey, in December, 1867, and that the purchase of the mortgage was in fact for Weston, • and cancelled by his ownership of the title.
Upon this, we think the testimony shows very clearly, that the purchase was by complainant on his own account, and for his own benefit, and that Weston never had any interest in it. Neither do we think there is any foundation for the claim that complainant was a party to any scheme of deception, or that he recognized Weston as having any rights in the mortgage. And we do not think the preponderance of testimony indicates any fraud in Weston.
It is claimed that in 1876, Weston conveyed one of the most valuable parcels of nearly forty acres to Loren Day and Lafayette E. Taylor, and that he induced them to believe the mortgage was paid, and showed them the assignment with the securities, representing it to have been taken to-complainant merely for .convenience, and promising to get a discharge from the original mortgagee, Mr. Wood, also-showing a letter from complainant in which he stated he-held no such mortgage.
These statements are not consistent with each other, or with facts which cannot be said to be open to controversy. The sale, or conveyance, to Day and Taylor was made in April, 1876. Upon what took place at the purchase the witnesses are at variance, but Taylor in his testimony states in substance that no examination of title was made until after the purchase, and then he discovered the Wood mortgage, and that Weston promised to get a release of it as it had been paid. He also says Day had found out it had been assigned to Jakway, and Weston said he would write and get it released, and witness supposed he did. All this-Weston denies. It appears that during that year Weston and his wife had sought, not as a right but as a favor, to get that parcel released, but complainant refused; and Weston distinctly informed him these parties bought subject to the mortgage. In September Taylor wrote him referring to the mortgage as in force, suggesting the propriety of having the assignment recorded, and representing the value of the mortgage as a first mortgage on the remaining property as a consideration why he should release this. This letter shows that hone of the papers were then in Weston’s hands, and that Taylor had not seen them, but knew what they were. Comparing all the testimony, which is somewhat mixed up, we have no doubt that Day and Taylor did not buy in any supposition that this mortgage had been paid, or that it belonged to Weston.
There is also some testimony from a detective who swears to admissions of payment made after this controversy had arisen. As the mortgage appears very clearly not to have been paid, and to have been treated as in force in the private dealings of Weston and complainant, we place no reliance on this testimony.
The only other person who claims to have taken title or security, relying on the non-existence of this mortgage, is Mrs. Noble, who took assignments of two subsequent mortgages given by Weston to Mr. Wood, covering a large amount of land in addition to these mortgaged premises,— the two mortgages being for $10,000 and $15,000, respectively. These mortgages were given to Mr. Wood, one in December, 1812, and one in January, 1813. He assigned them to Mrs. Noble in December, 1813. She was wife of one of the assignees of the former mortgage. Her testimony is, that she relied entirely on statements of Mr. Wood made to her at her home in the State of New York, that these were the only encumbrances. She did not rely on the records, and knew nothing of them. In her answer she says Wood told her this mortgage was paid, but in her testimony she denies having heard of its existence until long after.
Wood’s testimony was not taken. But in his letters which were introduced, referring to the proposed assign ments to Mrs. Noble, there are no such representations, and Mrs. Noble probably inferred more than was stated. There is every reason to regard her securities as adequate, without reference to this mortgage. Mr. Wood had been her business agent and had transacted loans for her, and it is not improbable that in the lapse of time, and from the fact that she had no discussion or doubts about the investment, she may now have wrong impressions. But it is not important, because Mr. Wood could not bind complainant by his representations, if he made any.
Upon the whole case we think complainant is entitled to enforce his mortgage. The assignment from Wood to H. & B. Noble was witnessed by the register and recorded at its date, and we have no right to assume it was not properly recorded. Mrs. Noble is the only defendant who makes any issue on the record of this assignment, and, as already suggested, she did not depend on the records or make any inquiry on the subject.
The record does not contain the means of determining in what order the lands should be sold, and a reference will be needed to ascertain this. Interest seems to have been paid to August, 1867, and a further amount of flora' reckoned at $250 will bring it down to March 15, 1868, from which time interest is to be cast without compounding, at ten per cent, per annum.
The decree must be reversed with costs and a decree entered declaring complainant entitled to enforce the mortgage for $4000 with interest from March 15, 1868, at ten per cent, per annum, and referring it to a commissioner to report in what order sales shall be made. All the defendants who have appeared, to produce evidence of their claims before the commissioner; and on the coming in of his report, the usual decree of foreclosure to be granted.
The other Justices concurred. | [
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] |
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