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Marston, C. J".
This was an action of trespass qu. cl. It appears tliat Thompson in the winter of 1879 cut a number of pine trees standing upon a certain piece of laud owned by the plaintiff, and it was admitted that the defendant acted in good faith in cutting and removing the timber.
Henry Moiles, the husband of plaintiff, was examined as a witness in her behalf. On the direct examination he gave no evidence as to the value of the timber cut or injury to the land, because he did not know the quantity or value of the timber cut and removed. On cross-examination defendant’s counsel sought to show by this witness that the same winter he sold timber of the same kind and quality, taken from off an adjoining section and near to the lands upon which the trespass was committed, and then asked the witness at what price he sold or offered to sell such timber. This was objected to and the objection sustained.
We are not satisfied that the defendant below was injured by this ruling. It was not a sale of the timber in question. It was in'fact but an offer to sell other timber of like kind and quality. Witnesses called to fix values have a right to give their opinion based upon actual sales known by them to have been made, but we think it would be going too far to hold that the court erred in rejecting an offer to prove a mere proposition to sell property similar to that in dispute to fix the value.
The only other question raised which we deem it necessary to consider relates to the charge of the court touching the measure of damages. There is no doubt but that the request made by counsel for defendant upon this part of the case was correct, and we also think that the court, in the first instance, did not give the same even in substance. But upon the attention of the court being called thereto, further instructions were given, and directed the. jury to determine whether the value of the timber cut covered the damage done to the land by the cutting thereof. If so, that should be the basis of their verdict, but if not, then to fix the amount at the damage done the land by the cutting and removal of the timber. This we think was substantially what counsel had requested, and the jury could not have misunderstood the measure here given them. .
We discover no error and the judgment will be affirmed with costs.
The other Justices concurred..
Defendant requested the court to charge the jury as follows:
“This is an action of trespass to land, brought by the plaintiff to recover from the defendant damages to her land caused by his going upon it, and cutting down and carrying .away certain 'pine trees. It is conceded by the plaintiff that defendant acted in good faith, believing that he had a right to cut and remove those trees, and admitted by the defendant that he was mistaken and that he had no such right; this being so the measure of damages will be the difference in value of the land with the timber standing on it, and its value after it was cut, and the timber removed. In other words, the measure of damages is the amount of injury to the plaintiff’s land by reason of the defendant going upon it, and cutting and removing the trees as a continuous act, and the increased value of the trees occasioned by the labor of defendant, converting them into logs, is riot to be included. ”
Which request the said circuit judge refused to give, to which refusal the defendant then and there excepted. | [
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Cooley, J.
Fish was plaintiff in the court below, and sought to recover in ejectment the possession of certain premises in Niles which he claimed under a mortgage foreclosure. The mortgage which was foreclosed was given to him by one Moses Davis, and bore date May 15,1865. The mortgaged premises were therein described as “ all that part of the southeast quarter of section twenty-seven in town seven south of range seventeen west lying east of the Michigan Central Railroad and bounded south and east by section lines, on the north by land owned and occupied by John B. Reddieh, and on the west by land owned and occupied by Charles H. Griffith.” June 6, 1865, Davis sold a parcel of the land extending, entirely through the whole tract, and on paying to Fish the purchase price, obtained from him a release to the purchaser of the parcel sold. Later in the same year he platted the whole parcel into blocks and lots as an addition to the city of Niles, and the lot previously sold and released was designated as lot seven of block two. After thus platting his land Davis sold one of the lots to Durm. In Juné, 1874, Fish advertised the mortgaged premises for sale under the power contained in the mortgage, and in Ms notice described tbe land as in tbe mortgage with tbe following added: “ Excepting and reserving from such all that portion of said premises wMcb has been released from tbe lien of said mortgage, and which portion is now known and described as lot number seven in block number two in Moses Davis’ addition to the city of Niles.” When the time of sale arrived the whole land as described in the notice of sale was offered in one parcel, and was struck off to Eish for the amount remaining unpaid. After the time for redemption had expired, this suit was instituted for the recovery of the lot which Durm had purchased and of which he was in possession.
The validity of the foreclosure proceedings is now questioned, because the sale was made as if the land sold was a single parcel, whereas the release wMch had been executed had made of it two parcels.
The statute regulating foreclosures under the power of sale requires the notice to contain “a description of the mortgaged premises, conforming substantially with that contained in the mortgage.” It also requires that “ If the mortgaged premises consist of distinct farms, tracts, or lots, they shall be sold separately, and no more farms, tracts or lots shall be sold than shall be necessary to satisfy the amount due on such mortgage, at the date of the notice of sale, with interest, and the costs and expenses allowed by law.” Comp. L. §§ 6915, 6918.
Apparently the statute contemplates that the same land which is mortgaged shall by the same description be advertised for sale. Nevertheless if a parcel has been released we do not think the right to sell under the power is thereby defeated; and it will doubtless be sufficient if the description follows that in the mortgage so as to enable the title to be traced of record, and then specifies and excepts the part released. The release, therefore, was of itself no fatal objection to this proceeding. We have no doubt, also, that where the land was mortgaged as a single parcel it may be sold as a single parcel without regard to subsequent subdivisions by the mortgagor with which the mortgagee had no connection.
But in this case the land had been separated into distinct parcels by the conjoint action of the two parties. The release rendered necessary a change in the notice which should recognize this separation. The parceling made an important change in the security: it was no longer a mortgage on one parcel, but on two, and the land could not be advertised as one parcel, for it was not one in fact, and a notice and sale that should follow the original description would manifestly be bad. The mortgagee, therefore, must proceed according to the new condition of things which he has concurred with the mortgagor in creating, and not according to the condition of things existing before.
If we are fight in this, the sale should have been made in parcels, and is void because not so made. Lee v. Mason 10 Mich. 403; Udell v. Kahn 31 Mich. 195. The point is well taken by the assignment of errors, and must prevail.
The judgment must be- reversed with costs and a new trial ordered.
The other Justices concurred. | [
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104
] |
Van Valkenburg, J.
J. Marshall Robbins, an automobile racing enthusiast, decided to build and race an automobile in a Can-Am series of races. While the total prize money for the series was in the amount of $1,000,000, the economics of automobile racing dictated the securing of outside sponsorship to defer the cost of building, preparing, and racing the automobile. Robbins was able to secure sponsorship in the amount of $50,000 from one Jeffries.
Robbins, in his search for additional, financial help, contacted a prominent Detroit area sportscaster for assistance. The latter was acquainted with Harry Levine, defendant’s president, and arranged for a meeting between Levine and Robbins. At that meeting held on February 13, 1969 Levine was shown a brochure describing Robbins’ proposal. Robbins indicated that the automobile would be driven in the 11 races in the series by Ronnie Buckman and would carry the banner ' 'Robbins-Jeffries Ewald Steel Special” emblazoned on its side. Robbins further indicated that a press conference would be held announcing the Ewald Steel sponsorship. Levine understood that the consideration for the $85,000 sponsorship money provided by his company was the publicity involved, and that he would not share in any prize winnings. Levine orally agreed to sponsor the endeavor to the extent of the aforementioned $85,000, the first $15,000 to be paid immediately.
On February 15, 1969 a check in the amount of $15,000 was delivered to Robbins. Robbins proceeded to order parts necessary for the construction of the automobile. In early March Robbins called Levine and indicated that due to a delay in the preparation of the automobile only 9 of the 11 races would be entered. Robbins further indicated that since the driver, Ronnie Buckman, had been injured, Peter Revson would be substituted as the driver. Levine said nothing about cancelling the contract because of these changes at that time.
In mid-March the press conference was held announcing the sponsorship by defendant corporation. Thereafter Levine, through an agent, informed Robbins that defendant wished to terminate the sponsorship agreement. Attempts were made to secure an alternate sponsor; however, the attempts were of no avail. The automobile was completed and was raced in the nine races with the defendant’s name on the side of the vehicle. Defendant has steadfastly refused to pay the $70,-000 balance of the $85,000 originally agreed upon. The trial court determined that plaintiff was entitled to the contract amount less a reduction of two elevenths, to reflect the failure of plaintiff to enter the automobile in 2 of the 11 agreed-upon races. Accordingly judgment in favor of plaintiff was entered in the amount of $54,545.43. From that judgment defendant appeals as of right.
Defendant on appeal does not attack the legality of the contract, but rather disputes the amount of damages. Counsel argues with considerable vigor that the proper measure of damages was the amount expended or committed at the time of the breach, rather than the unpaid balance owing on the contract amount. In essence defendant’s argument is that in accordance with plaintiffs duty to mitigate damages, plaintiff is entitled to only those sums he had committed to the endeavor at the time of the breach.
It is well established that the plaintiff must make every reasonable effort to mitigate damages. Edgecomb v Traverse City School Dist, 341 Mich 106; 67 NW2d 87 (1954); 22 Am Jur 2d, Damages, § 36, p 60. Such a defense, however, is an affirmative one; and proof of plaintiffs failure to mitigate rests upon the defendant. Fothergill v McKay Press, 374 Mich 138; 132 NW2d 144 (1965).
The question that must be answered is whether plaintiff should have ceased the preparation of the automobile at the time of the breach in order to mitigate the damages. It must be remembered that plaintiff had entered into a sponsorship contract not only with defendant but also with Jeffries; thus, had plaintiff ceased the construction and preparation of the automobile and failed to race the automobile, plaintiff would have breached the contract with Jeffries.
Counsel have been unable to furnish us with any Michigan authority precisely on point. Recourse to other authorities has been instructive. In 17 Am Jur 2d, Contracts, 444, p 903, it is stated:
"There are exceptions to the rule that a contracting party must stop performance when directed to do so by the other party. For instance, where the plaintiff is not interested solely in profit from the agreement but must proceed with the work in order to fulfill contractual obligations to others * * *
Further, in 11 Williston on Contracts (3rd ed), § 1302, pp 84, 85, it is stated:
"It need not be contended that in every case the principle of damages in question will deprive the plaintiff of the right to continue performance of the contract after it has been repudiated. There may be cases where so doing will not needlessly enhance damages, and it is a question of fact in every case whether such enhancement of damage will be caused.
"Also, where a seller or manufacturer is under a duty to more than one person to perform the contract, a countermand by one, as it will not justify breach of contract with the others, should be inoperative.”
Were we to hold that plaintiff must terminate the endeavor in order to mitigate damages, plaintiff would be confronted with a "Hobson’s choice”. If plaintiff did not terminate he would suffer grievous financial losses, since defendant would be liable only for those sums expended or committed prior to the breach; however, if plaintiff did terminate, plaintiff would be liable to the third party by reason of the breach of the contract with that party. Since plaintiff is only under the duty to make "reasonable” efforts to mitigate damages, plaintiff need not take the unreasonable action of breaching the contract with the third person. Under these circumstances the only reasonable action on plaintiff’s part was to attempt to secure an alternate sponsor. Since plaintiff attempted to find an alternate sponsor, plaintiff made every reasonable effort to mitigate the damages. Accordingly the trial court properly determined damages on the basis of the contract amount.
Plaintiff, by way of a cross-appeal, raises the question of whether the trial court properly reduced the amount of the damages to reflect the fact that only 9 of the 11 races were entered. Since this was essentially an oral contract, and therefore vague in its provisions, the trial judge could have reasonably concluded from the evidence that in return for its $85,000 sponsorship fee defendant had expected that the sponsored car would appear in all 11 Can-Am races. Thus, plaintiff’s failure to fulfill that expectation should properly result in a proportional reduction in compensation.
Affirmed. No costs as neither side has prevailed in full.
All concurred. | [
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Chandler, J.
Plaintiff, a resident of Cleveland, Ohio, on May 27,1940, brought this suit by summons in the circuit court for the county of Jackson against the Collier Construction Company, an Ohio corporation, and simultaneously therewith filed with the clerk of the court an affidavit for writ of garnishment against the Consumers Power Company, a Maine corporation, authorized to do business in the State of Michigan, and having its principal place of business and office in the city of Jackson in said county. The writ of garnishment was served upon the Consumers Power Company on the date of issue and the calendar entry shows proof of service filed on May 28th.
The calendar and journal entries do not disclose that a writ of summons was issued, but an affidavit of the deputy county clerk was filed after a motion made by the principal defendant in which she stated that simultaneous with the issuance of the writ of garnishment a summons was issued with' the seal of the court impressed thereon in favor of the plaintiff and against the principal defendant, and that she inadvertently neglected to enter upon the calendar or journal the fact of the issue of said original writ.
On June 5, 1940, the principal defendant appeared specially and moved to dismiss the garnishment proceedings upon the ground that at the time of the issuance of the writ of garnishment no suit had been commenced against the principal defendant because it did not appear from the calendar entries that a declaration had been filed or a summons issued. This motion was heard on June 10, 1940, by Judge Williams of the Jackson circuit, who stated:
“There has been produced in court the original summons bearing the signature of Olive McManus, deputy clerk. It is true that the summons bears no file mark, but if it was in fact issued and was in fact placed in the hands of a competent person for service, then I think the suit was commenced. * * * This summons does not have to be returned until the time for service has expired and I think the disposition I will make of this matter is to hold the matter open until the 27th day of July, 1940, that being the return day of the original writ, and see what the return of service shows. Consequently, I decline the motion to dismiss at this time. ’ ’
In the motion that was made by the principal defendant for the dismissal of the cause, the defendant was described in said motion as a foreign corporation, and the sole reason given for such motion was the failure of the plaintiff to file with the clerk a declaration, with or without notice to plead, or to take out any summons or other original process or writ issued or filed as commencement of suit by plaintiff. No disposition was made by the court of this motion after July 27, 1940. On August 10th the garnishee defendant, Consumers Power Company, filed its disclosure, disclosing a liability from it to the principal defendant.
On June 7th plaintiff filed his declaration which was upon the common counts claiming damages in the sum of $30,000. On June 15, 1940, plaintiff moved to amend the original writ in the principal case by making the return day thereof July 24th instead of July 27th, and on July 25, 1940, this motion was heard before Judge Simpson, of the Jackson circuit, who granted the motion allowing an amendment of the original writ so that the return day would read “July 24” instead of “July 27.” This original writ was amended by striking out the figure “27” and inserting the figure “24.” On July 27, 1940, an order to this effect was entered and as directed by the judge “was entered as of July 25, 1940, nunc pro tunc.”
The principal defendant, a foreign corporation, prior to and at the time of the commencement of this action maintained a resident agent, the Corporation Company, to accept service of process at 1638 Dime Bank Building, Detroit, and service of amended summons, copy, of affidavit and writ of garnishment with return of service thereon was served on said agent on the 26th day of July, 1940, as shown by proof of service filed with clerk of the court on July 30, 1940.
The principal defendant on July 31, 1940, filed another motion, being one “to quash substituted service of July 26, 1940, to dismiss suit, 'and to quash writ of garnishment and to dismiss garnishment proceedings,” for the reasons (among others) that substituted service is not authorized by statute upon defendant which is a corporation organized under the laws of Ohio, but domesticated and licensed to do business in Michigan and having a principal office and a resident agent in Michigan, and that the affidavit for writ of garnishment does not state facts sufficient to authorize substituted service under 3 Comp. Laws 1929, § 14885 (Stat. Ann. § 27.1883); that defendant is not a foreign corporation within the meaning of said section:
“That this court has no jurisdiction in this suit (which is a personal transitory action on contract) of either the parties or the subject matter, neither of the parties being residents of the county of Jackson, and the cause of action not having accrued within said county, as fully set forth in the motion to dismiss and quash service, made under special appearance and filed herein July 10, 1940, reference to which is hereby made; valid service of summons has not been made within said county and valid substituted service by notice under said statute has not been made.”
The affidavit of P. C. Collier referred to in said motion, so far as material here, is as follows:
“(1) That he resides in the city of Cleveland, State of Ohio, and is president of the Collier Construction Company, defendant in the above-entitled cause.
“ (2) That said defendant is a corporation organized under the laws of. the State of Ohio; that it has been duly domesticated in the State of Michigan, and it has qualified and been admitted to do business therein under Act No. 327, Pub. Acts 1931, and that its principal office and place of business and its residence in the State of Michigan, at and prior to the commencement of this suit, was, and still is, in the city of Adrian, county of Lenewee; that said corporation has no other principal office in the State of Michigan; that the Corporation Company which has its office and address in the Dime Bank Building in the city of Detroit, Wayne county, State of Michigan, was at the time of the commencement of this suit, and still is, the resident agent of the said defendant within the State of Michigan, having been duly designated as such pursuant to and in accordance with the statutes of the State of Michigan.
“(3) That James W. Fraser, Jr., plaintiff in the above-entitled cause, was not at the time of commencement of said suit, has not since been, and is not a resident of the State of Michigan, but was at the time of the commencement of said suit, has since been, and still is, a resident of the city of Lakewood, county of Cuyahoga, State of Ohio.”
This motion was heard in the Jackson county circuit court on August 12, 1940, by Honorable Mark D. Taylor, circuit judge presiding, who granted said motion and in granting the same stated:
“This is a motion by defendant to dismiss plaintiff’s action on the grounds that the court is without jurisdiction, and to quash service of the writ on the grounds that the same is invalid.
“The court has had the benefit of able briefs filed by counsel, which are made a part of the court file in this matter.
“It would seem to the court that for the purposes of this motion, a review of the facts is unnecessary, they having been fully stated in the records, reference to which is hereby made. A careful study of the briefs submitted convinces the court that for the reasons stated in: Republic Truck Co. v. Buda Co. 212 Mich. 55; Kammeier v. Muskegon Circuit Judge, 225 Mich. 597; Gober v. Federal Life Insur ance Co., 255 Mich. 20, 24; the motion should he granted and an order may be entered accordingly.”
From an order entered in accordance with this opinion, plaintiff appeals, claiming error on the part of the court in the dismissal.of said action.
After a careful review of the record and briefs in this case, we believe but one question is presented for our consideration, and that is, may a nonresident plaintiff bring an action against a foreign corporation which has become domesticated in Michigan, hut is a nonresident of the county in which suit is brought, by causing a writ of garnishment to be issued in said cause and served upon the garnishee defendant, also a foreign corporation, authorized to do business in Michigan, and having its principal office and place of business in the county in which such suit is brought pursuant to 3 Comp. Laws 1929, § 14885!
We have carefully reviewed the cases cited by the lower court in support of its opinion and order and find that none of them involve' the garnishment statute under which the plaintiff and appellant brought his action in the instant case. These cases concern the question of proper venue in an action in personam brought by a nonresident plaintiff against a Michigan corporation, or a foreign corporation duly authorized to do business in Michigan. The section under which this action is brought, 3 Comp. Laws 1929, § 14885, is as follows:
“If the plaintiff, in addition to the allegations hereinbefore required to be contained in the affidavit for the writ of garnishment, shall set forth in such affidavit that the principal defendant is a nonresident of the county or State where the suit is commenced, or that one of the principal defendants is a nonresident of the county or State, where there is more than one principal defendant, or a foreign corporation created in any jurisdiction (naming it), the principal writ or declaration and affidavit may he filed of the day of issue, and the writ of garnishment may he served as in ordinary cases; and within sixty days after such service the plaintiff shall cause to he delivered to such nonresident defendant or defendants, or the president, secretary, cashier or treasurer of such foreign corporation residing out of this State, or upon any officer, clerk or agent residing or to he found within this State, a true copy of the principal writ or declaration, affidavit and writ of garnishment, with return of service thereon, and with a written or printed notice attached, signed hy the plaintiff or his attorney, stating that said nonresident defendant or defendants, or foreign corporation, is notified to appear and defend within thirty days after such service, or default will he entered and judgment taken, and upon filing an affidavit of such service, further proceedings to judgment may he had as in ordinary personal actions. If there is more than one defendant, some of whom reside within this State, notice shall he served on the^ resident defendants of the time and manner of giving notice to the nonresident defendants.”
3 Comp. Laws 1929', § 14092, as amended (Comp. Laws Supp. 1940, § 14092, Stat. Ann. § 27.759), provides for service of process on a corporation which shall have appointed an agent to accept service of process and also as to the method of proceeding in case said corporation shall fail to appoint or maintain a resident agent in the State of Michigan for such purpose. Said section provides:
“Process issued from any court of record against a corporation, partnership association or unincorporated voluntary association, may he served upon any officer, director, trustee or agent thereof, or by leaving same during regular office hours at the office of such corporation, partnership association or unincorporated voluntary association, with any person in charge thereof: Provided, That when any corporation shall appoint a resident agent and file a certificate of such appointment as by law required, such resident agent shall continue to be an agent for the service of process until a certificate of change of resident agent shall be filed with the secretary of State as by law required: And provided further, That if any corporation shall fail to appoint and maintain a resident agent and file a certificate of such appointment as by law required, such process may be served on the secretary of State. Except as otherwise provided in this act, all general or special laws relating to the service of process upon corporations are hereby repealed.”
In the instant ease the principal defendant in compliance with the foregoing statute did appoint an agent at a designated place of business and maintained such agency, and its appointment and main■tenance was for one purpose only, that is, to accept service of process that might be issued against defendant in the State of Michigan, and we must hold that appellee having appointed such resident agent, for the purpose aforesaid, cannot complain because process was served upon said resident agent instead of some person in charge of its office and principal place of business in the State of Michigan maintained in Lenawee county.
It was the claim of the appellee in the court below and it is its claim here that it is entitled to have this action and garnishment suit dismissed for lack of jurisdiction by the Jackson county circuit court because of the provisions of 3 Comp. Laws 1929, § 14090 (Stat. Ann. § 27.757), contending that its office and residence in Michigan was in Lenawee county and that it was entitled to all of the immunities of a domestic corporation and should have been sued in that county.
In this case, in view of the fact that the plaintiff is a nonresident of the State, that the defendant is a foreign corporation authorized to do business in this State with a resident agent established to accept service of process herein, the real test is this: Did the Jackson county circuit court have jurisdiction over the garnishee defendant whose office and principal place of business was located therein? It appears from the disclosure of garnishee defendant, whom we hold was within the jurisdiction of the Jackson county circuit, that it had credits in its hands to which the principal defendant was entitled, that it was indebted to said principal defend-, ant, and that such credits or intangible personal property, by the garnishment proceedings herein, were clearly brought under the control of the circuit court of said county. They were as effectively brought under the jurisdiction and control of said court, and subjected to any lawful claim of plaintiff, as they would have been had the proceedings been by attachment against tangible personal property of the principal defendant. It is unimportant whether the property is brought under the control of the court in the first instance by attachment or other equivalent act.
The next query is: Can garnishment proceedings be maintained unless the court has jurisdiction of the parties to the principal suit? This must be answered in the negative. In a case very similar to the instant one, this court said: ‘ £It is not necessary to jurisdiction in garnishment cases that either of the parties in the original case be residents of this State or that the cause of action accrue here.” H. Williamson, Ltd., v. Phinney-Walker Co., 247 Mich. 645, 648, 649. In this cited case the plaintiff was a corporation organized under the laws of Great Britain. The principal defendant, PhinneyWalker Company, was a New York corporation. Neither was authorized to do business in Michigan. The garnishee defendant was a Delaware corporation authorized to do business in this State; its principal business office was in the city of Detroit. The principal defendant was indebted to the plaintiff for goods sold and delivered on a contract not to be performed in Michigan. The plaintiff brought action in Wayne county and garnisheed the General Motors Corporation, and an indebtedness from the garnishee defendant to the principal defendant was disclosed. The principal defendant appeared specially and moved to quash the writ and dismiss the action on jurisdictional grounds. The motion was denied and the case was brought before this court for review. The court in determining the questions there involved said (pp. 647-649):
“The question is whether the circuit court has jurisdiction in garnishment proceedings where the plaintiff, a nonresident corporation, whose cause of action does not accrue within this State, sues another nonresident corporation and garnishees a corporation, also a nonresident but authorized to do business in this State, and who maintains a business office in Wayne county, where the suit was instituted.
“By the great weight of judicial opinion, the jurisdictional test for garnishment is the suability of the garnishee defendant by the principal defendant in the jurisdiction where the garnishment is instituted. Harris v. Balk, 198 U. S. 215 (25 Sup. Ct. 625, 49 L. Ed. 1023, 3 Ann. Cas. 1084); Bingenheimer Mercantile Co. v. Weber, 49 N. D. 312 (191 N. W. 620, 27 A. L. R. 1392), and cases cited in annotation in 27 A. L. R. p. 1396.
“It is contended that the principal defendant cannot maintain a suit in Michigan against the garnishee defendant for its debt because both are nonresidents.
“The garnishee defendant is a foreign corporation, but, as we have said, it is authorized to do business in Michigan. It operates large automobile plants in this State and maintains a business office in the county where this suit was started. In becoming domesticated by complying with the statute regulating the transaction of business in this State by foreign corporations, it has acquired a local existence for business and jurisdictional purposes and may sue and be sued the same as domestic corporations or natural persons. Republic Motor Truck Co. v. Buda Co., 212 Mich. 55.
“It follows that the principal defendant could maintain an action in Wayne county against the garnishee defendant for its debt and the court would have jurisdiction to enter a valid judgment. But the defendant .contends that the court must also have jurisdiction of the parties to the principal action, and that there is no such jurisdiction in this case because neither the plaintiff nor the principal defendant is a resident and the cause of action did not accrue in Wayne county or the State of Michigan. In support of this contention, the defendant relies on 3 Comp. Laws 1915, § 12340, which in part reads as follows:
“ ‘In eases where the plaintiff is a resident of the State of Michigan, suits may be commenced in any county where the plaintiff resides, against any corporation not organized under the laws of this State; and where the plaintiff is a nonresident of the State of Michigan, where the cause of action accrued within the State of Michigan, such plaintiff may bring action in the county where the cause of action accrued. ’
“The defendant is correct in asserting that the garnishment proceedings cannot be maintained unless the court has jurisdiction of the parties to the principal suit, but notwithstanding the statute above quoted, it is not necessary to jurisdiction in garnishment cases that either of the parties in the original case be residents of this State or that the cause of action accrue here. In Newland v. Wayne Circuit Judge, 85 Mich. 151, both parties to the principal action were nonresidents of Michigan and the cause of action accrued without the. State. The court said:
“ ‘There is no valid reason why the courts of this .State may not acquire jurisdiction over persons and ehoses in action, as well when both parties to the original action are nonresidents of the State, as where the plaintiff in the original suit is a resident of the State. The plaintiff, a nonresident, comes into the State, and submits himself to the jurisdiction. The statute points out the mode of procedure to acquire jurisdiction over the defendant in the principal suit; not for the purpose of rendering a personal judgment against the nonresident defendant, but to subject the ehoses in action in the hands of the third party to the payment of the plaintiff’s demand. To this extent the statute confers upon the court jurisdiction to proceed. ’ .
“The defendant has argued the situs of the debt as of controlling importance in this case. We have not discussed that question because, under the Michigan garnishment statute, jurisdiction does not depend on situs of the debt. The determining factor is whether the principal defendant can sue for the garnished debt in the jurisdiction where garnishment is brought. If he can do so, his creditor, regardless of residence, can come into the same jurisdiction and subject the debt to the payment of his claim. That is the purpose- of the statute under which these proceedings were brought.”
We quote thus fully from the H. Williamson, Ltd., Case, supra, because we think it is clearly decisive of the question involved in the instant case.
The order of the lower court dismissing this cause is reversed and the case is remanded.
Plaintiff may recover costs.
Sharpe, C. J., and Bushnell, Boyles, North, McAllister, Wiest, and Butzel, JJ., concurred.
In particular, Comp. Laws Supp. 1940, § 10135-93 et seq., Stat. Ann, §§ 21.94-21,98.—Reporter.-
By Act No. 195, Pub. Acts 1933.—Reporter.
Now 3 Comp. Laws 1929, § 13997, as amended by Act No. 225, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 13997, Stat. Ann. § 27.641).—Reporter. | [
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Wiest, J.
Plaintiff school district seeks a-writ of mandamus directing the State Land Office Board and the auditor general to convey to it, by quitclaim deed, title to certain lots in the township- of Redford, Wayne county, held by the State under purchase at the May, 1938, sale for unpaid taxes.
The owners of the lots did not exercise right of redemption as provided by law but, after expiration of the period of redemption and on May 14, 1940, conveyed some of the lots, by quitclaim deed, to defendant Neralac Corporation and, about that time, conveyed other lots to defendants Yern M. Bingham and Robert A. Bogan. May 18, 1940, the lots were put up for sale at public auction, as provided by Act No. 155, Pub. Acts 1937, as amended by Act No. 244, Pub. Acts 1939 (commonly known as the scavenger sale), and struck off to plaintiff who paid all sums required by the State and received a certificate of purchase. Where land is sold for unpaid taxes, bid in by the State, no redemption made, and is put up for sale by the State at the so-called scavenger sale and struck off to the highest bidder, may one who has acquired a quitclaim deed from the former owner, after he has failed to redeem the premises, match the highest bid at the scavenger sale and be entitled to a deed from the State?
Act No. 155, § 7, Pub. Acts 1937, as amended by Act No. 244, Pub. Acts 1939, provides that the successful bidder at the scavenger sale shall receive a certificate of purchase and: “Any person who, at the time of the tax sale, had any interest in any parcel of land so sold, shall have the right for a period of 30 days after such public sale as in this section provided, to meet the highest bid, by paying the amount thereof to the county treasurer.”
In Stickler v. State Land Office Board, ante, 271, we held the tax sale above mentioned means the sale at which the State bid in the property and not the scavenger sale.
At the time of the sale to the State, the Neralac Corporation, Yern M. Bingham and Robert A. Bogan had no interest of any kind in the land so sold and, as we held in Stickler v. State Land Office Board, supra, had no fight to meet the bid of the school district and receive deeds.
The right to match the highest bid at the scavenger sale is a granted privilege, limited to persons having an interest in the land at the time of the sale for unpaid taxes, and is valid.
Plaintiff is entitled to a deed and, if necessary, the writ will issue. No costs.
Sharpe, C. J., and Bushnell, Boyles, Chandler, North, McAllister, and Butzel, JJ., concurred.
Comp. Laws Supp. 1940, § 3733^-1 et seq., Stat. Ann. 1940 Cum. Supp. §§ 7.951-7.964.—Reporter. | [
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] |
Sharpe, C. J.
This is an action in assumpsit for lumber material sold by plaintiff to defendant. Plaintiff claimed a balance due in the sum of $16,-089.37 and interest. Defendant denied liability and claimed set-off and recoupment for the sum of $24,194.32 plus interest at five per cent, from September 1, 1937. On May 26, 1939, the jury returned a verdict for plaintiff in the sum of $14,589 and a verdict of no cause for action on defendant’s claim for set-off and recoupment. Judgment was entered in favor of plaintiff for the amount of the verdict.
Many facts in this case are disputed, but the following facts appear to be undisputed: In February, 1937, the State of Michigan let a general contract for the construction of four four-story buildings, known as dormitories, for the Ypsilanti State hospital to the Permanent Construction Company. Albert Kahn, Inc., was the architect employed to make the plans and specifications for the buildings. The specifications supplied to the contractors provided:
“Where concrete is exposed in rooms, corridors, porches and so forth (not including storage rooms in basement, over-suspended ceilings and pent houses), line forms with specially treated plywood in as large sheets as possible; joints fitted close and thoroughly braced to prevent sag or bulge.”
Early in March, 1937, defendant entered into a contract with the Permanent Construction Company to perform the form building work on the job for the sum of $70,000. Negotiations were entered into by defendant with plaintiff company for the furnishing of the required material and defendant ordered a carload, consisting of 65,000 feet, of concrete form plywood from plaintiff. The written purchase order for this material dated March 17, 1937, stated: “Delivery required — April 1, 1937.” The product required was made in the State of Washington and it normally takes three or four weeks for delivery of a carload of material from the State of Washington to the city of Detroit. Delivery of the carload of material was not made until May 6, 1937. On or about April 5, 1937, the general contractor, Permanent Construction Company, demanded forms from defendant and he, not being able to get the carload of material from plaintiff when needed, had to get delivery of about 5,000 square feet of concrete form plywood immediately in order to get the walls up to meet the requirements of the general contractor. Plaintiff company furnished 5,000 feet of plywood on or about April 8, 1937, and charged for the same at the rate of $78 per thousand. This plywood was used on the job, but did not give satisfactory service. Subsequently, tbe 65,000 feet of plywood from tbe car was delivered and used on the job, but it also did not give satisfactory service.
It is the claim of defendant that: He had been a customer of plaintiff company since 1920. On March 13, 1937, plaintiff’s salesman Edge came to defendant’s office and he and defendant’s office manager examined a pamphlet distributed by the West Coast Plywood Company which reads as follows:
“Unique New Form Material.
“Pew developments in building construction have so quickly commanded acceptance in every section of the country as the new specially-fabricated and treated Douglas fir plywood for concrete forms. Already, therefore, the following special advantages of this unique new material — which serves as lumber-and-lining combined — have been demonstrated on scores of buildings, bridges, viaducts and other structures requiring flawless surfaces.
“1. Highly water-resistant — can be used 7 to 10 times.
“2. Saves 40 per cent, to 75 per cent, carpentry labor.
“3. Speeds up stripping.
“4. Gives smooth, finless surfaces immediately.
“5. No costly rubbing or plastering necessary.
“6. Split-proof, non-bulging*, ideal for reverse molds.
“7. Giant sizes reduce lineal footage of joints. (Stock sises up to 4 oo 8 ft., larger sises on special order.)
“Although architects and contractors generally prefer the %-in. thickness — which requires no lining — this special Douglas fir plywood is also available %-in. thick for lining and for curved forms.
“Besides all the other economies offered by this material, the %-in. panels cost less than shiplap with a suitable lining.
“This new form material is made of thin sheets of selected old-growth Douglas fir, laminated with alternating grain direction for split-proof, warp-resistant strength. These sheets are bonded with a special glue that is highly water-resistant and far stronger than the wood fibers themselves. Finally each panel is sanded and thoroughly treated with a water-repelling agent developed especially for fir plywood.
‘ ‘ This double waterproofing protection gives these special panels stamina for 7 to 10 re-uses, after which they are still suitable for sheathing, sub-flooring, and other utility uses. ’ ’
Upon this occasion, plaintiff’s salesman Edge stated that this material, concrete form plywood, was standard material used for concrete form lining ; that it was the same material specified by Kahn the architect; that it would give at least four re-uses and have some salvage value; that plaintiff company sold plywood every day and dealt in concrete form plywood; that plaintiff company could furnish the identical material described in the West Coast Plywood Company’s pamphlet; and that it would take 10 to 15 days to get delivery. Defendant ordered one carload consisting of 65,000 feet of concrete form plywood from plaintiff company; and 5,000 square feet of material was ordered because of the delay in the delivery of the carload. When the plywood from the 5,000-feet lot was stripped from the walls, the edges had curled and in some cases the laminations had pulled apart and by breaking the edge, trimming off the portion that had curled, some of the 5,000-feet order was used a second time. The 65,000 feet of plywood was not suitable for concrete form work as the glue did not hold,- the laminations came apart and the edges curled. The only use defendant was able to get out of the carload of ply wood was one when new and one more by going to the extra trouble and expense of removing it from the panels to which it had been nailed, sawing off the edges which had curled and re-laying it by an extra operation. Because of the unfitness of this plywood, it became necessary to purchase 55,612 square feet of additional plywood; and the loss and damage to defendant as a result of the purchase of plywood from plaintiff company is as follows:
“Extra labor costs.................$21,360.82
Extra social security tax........... 213.60
Extra payroll insurance............ 2,349.69
Extra materials ................... 2,587.98
Back charges, short lengths......... 500.00
Back charges, to remove fins, repair depressions in concrete........... 2,500.00
Extra superintendent’s pay......... 600.00
Cost of checking and additional, time and expenses of Mr. Schultz and Mr. Lightfoot................... 3,011.21
Total $33,123.30”
Of this amount defendant makes a credit of $8,928.98 and claims a balance due him of $24,194.32.
It is the claim of plaintiff company that: As to the 5,000 feet of plywood ordered and delivered, the defendant’s manager called him by telephone and asked for specially treated plywood, but was informed that specially treated plywood was not available in Detroit and had to be made up on special order. Defendant’s manager then requested that ordinary plywood be sent out to the job; and the material sent out was so stamped and defendant’s superintendent saw the material and knew that it was ordinary plywood. There was no guarantee that such material was anything other than ordinary plywood.
As to the order for 65,000 feet of plywood, defendant obtained a pamphlet issued by the West Coast Plywood Company, a manufacturer of “specially treated plywood,” descriptive of the product. Plaintiff’s salesman denied discussing with defendant the merits of the plywood as shown in the pamphlet, denied making any statement as to the number of re-uses that specially treated plywood could be put to, and denied that he made any recommendations as to the quality of the material. Plaintiff’s salesman did inform defendant that he would get the prices on the kind of material wanted, did get the prices, and gave the order for a carload as requested by defendant.
As to the six sales of plywood sold by plaintiff to defendant in addition to those above mentioned, the defendant ordered ordinary plywood or plywall, and received just what he ordered, and defendant knew or should have known that this plywood was for interior construction purposes where the same would not come in contact with moisture. Plaintiff claimed that the balance owing it at the time this lawsuit was tried was $17,429.61.
The subject matter of this lawsuit was submitted to a jury, and a judgment for plaintiff in the sum of $14,589 was entered on the verdict and judgment of no cause of action against defendant on his counterclaim.
Plaintiff appeals because it did not receive a judgment for the full amount of its claim. The defendant appeals from the denial of its motion for a new trial and denial of his motion to enter judgment in his favor notwithstanding the verdict.
Defendant urges that an implied warranty of fitness of the material sold for a particular purpose (concrete form liners) arose out of the circumstances of this case; and that the trial court failed to instruct the jury properly on the law pertaining to the facts involved in this case.
It appears that at the conclusion of defendant’s proofs on his claim of set-off and recoupment, plaintiff moved for a directed verdict of $17,429.61 against the defendant and for a judgment of no cause of action on defendant’s claim of set-off and recoupment.
The record shows that the 5,000 square feet of ordinary plywood was used about May 20, 1937, and a few days later it was re-used. Some of the concrete form plywood from the car was used about May 26, 1937, and some used on June 19, 1937, and re-used about June 27th. On July 10, 1937, defendant notified plaintiff that it was not getting good results with this material. It also appears that plaintiff company never handled or sold concrete form plywood prior to the sale made in this case. In our opinion there was neither an express nor implied warranty as to the 5,000 square feet of ordinary plywood. Moreover, defendant’s superintendent knew it was ordinary plywood before it was used. As to this item the jury should have been instructed that no damages could arise from its sale in this case.
As to the other six sales of plywood, the first order for which was placed beginning with July 25 or 26, 1937, the record fails to show that there was any express or implied warranty. Defendant had had experience with ordinary plywood on the job prior to these orders and knew what to expect from it. No recovery may be had for any extra expense growing out of the purchase and use of this plywood.
The principal question involved in this case relates to the 65,000 feet of specially treated plywood. It appears that defendant’s manager secured a pamphlet issued by the West Coast Plywood Company, the manufacturer of the product, and asked plain tiff’s salesman if lie thought the material would he suitable for concrete form work. Defendant’s manager testified as follows:
“We read the specification over and I asked Mr. Edge if it was his understanding of that specification that that material was the ideal material for concrete form work that we were doing; and he said it looked to him like that is what it was. * * *
“A. Well, I got an opinion, personal opinion of Mr. Edge that in his opinion it could be used as described in the pamphlet and we should have four uses out of it.
“Q. Mr. Edge told you that also, did he?
“A. That’s right, in his opinion. * * *
“Q. All right, what was there in that conversation then that shows that Edge said this material could be used four or five times; if there is anything you haven’t stated yet? Point out everything in your testimony where Edge told you this plywood could be used four or five times.
“A. In his opinion, he thought it would be suitable for four uses. * * *
“Q. Yes, I know it did, Mr. Edge didn’t say it could be used four or five times, did he?
“A. He didn’t say it couldn’t be used.
“ Q. I asked you if he said it could be used.
“A. He said in his opinion it could; the next day he called me on the telephone and told me what the price was, but he didn’t say it couldn’t. ’ ’
In our opinion the salesman of plaintiff company did nothing more than express an opinion of the merits of the plywood.
Section 9451, 2 Comp. Laws 1929 (Stat. Ann. § 19.252), provides:
“Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No confirmation of the value of goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.”
“A guaranty or warranty is a matter of contract, must be a part of the contract itself upon which the minds of the parties meet, and cannot exist without it.” Murphy v. Gifford, 228 Mich. 287, 299.
See, also, Switzer v. Pinconning Manfg. Co., 59 Mich. 488; John D. Gruber Co. v. Smith, 195 Mich. 336; Clintsman v. Alfred J. Brown Seed Co., 127 Mich. 280; Richey v. Daemicke, 86 Mich. 647; Linn v. Gunn, 56 Mich. 447.
The next question is: May defendant recover upon an implied warranty?
It is urged by defendant that he relied upon plaintiff company to supply the carload of concrete form plywood to loe used as a liner for panels in constructing concrete forms on the State hospital dormitories; that the only information defendant had as to the product ordered was what was contained in the pamphlet; that there were about 250,000 square feet of forms to be lined with concrete form plywood; and that estimating four re-uses of the plywood it would be necessary to order about 65,000 square feet of concrete form plywood.
The law of implied warranty is well stated in Dunn Road Machinery Co. v. Charlevoix Abstract & Engineering Co., 247 Mich. 398 (64 A. L. R. 947), where we said:
“It is well stated by Mr. Mechem, as follows:
“ ‘The implied warranty of fitness is not to be extended to cases which lack the necessary conditions upon which it depends. The essence of the rule is, that the contract is executory; that the particular article is not designated by the buyer; that only his need is known; that he does not undertake or is not able to determine what will best supply his need, and therefore necessarily leaves the seller to make the determination and take the risk; and if these elements are wanting, the rule does not apply. If, therefore, a known, described and defined article is agreed upon, and that known, described or defined article is furnished, there is no implied warranty of fitness even though the seller is the manufacturer and the buyer disclosed to him the purpose for which the article was purchased.’ 2 Mechem, Sales, § 1349.”
In our opinion the following testimony of Arthur J. Lightfoot, office manager for defendant, is some evidence that defendant relied upon plaintiff company to furnish suitable material for the job:
“At the time we purchased the concrete form plywood through the Sibley Lumber Company, no brand was specified. We did not specify any manufacturer. We first asked the Sibley Lumber Company to supply us with the material described in the pamphlet, Exhibit 17; and Mr. Edge told me that it was a standard material, that any lumber company could furnish it, and that they could furnish that material which would be identical with what was described in the pamphlet, Exhibit 17.”
The value of this evidence was a matter for a jury to determine and this brings us to the question of whether proper instructions were given to the jury.
Defendant urges that it was prejudicial error upon the part of the trial court to refuse to give the following instruction:
“I charge you, that if you find that the defendant and cross plaintiff, Eobert J. Schultz, doing business as Builders Specialty Company, made known to the plaintiff and cross defendant the purpose or purposes for which the Builders Specialty Company desired the concrete form plywood here concerned, and it appeared that the buyer relied on the seller’s judgment, then there is an implied warranty of fitness of the concrete form plywood furnished for such purpose and if this material is inherently defective, resulting in loss to the purchaser, the defendant and cross plaintiff has a right to recover from plaintiff and cross defendant, the amount of damages actually sustained by him, caused thereby.
“It has been frankly admitted here by Ernest Edge that he knew the purpose for which this plywood was to be used and I charge you that the knowledge so obtained by the salesman, Ernest Edge, is imputed to his principal, F. M. Sibley Lumber Company, and they are chargeable with that knowledge just as though it had been given to anyone of the officers of the company.
“In this connection, the fact that the plaintiff and cross defendant, F. M. Sibley Lumber Company, was not the manufacturer of the plywood, would in no way relieve the- company, as under the Michigan law, the dealer impliedly warrants what he sells, the same as the manufacturer, where, as previously stated, the purpose for which the buyer purchased the goods has been made known to the seller and it appears that the buyer relied on the seller’s judgment. (2 Comp. Laws 1929, § 9454, subsection (1) [Stat. Ann. § 19.255]).”
We have examined the record and fail to find that the trial court gave- any instruction upon the subject matter of the above request. In our opinion, it was error to fail to instruct the jury upon the subject matter contained in the first and third paragraphs of the above request.
Section 9454, 2 Comp. Laws 1929, provides:
• “(1) Where.the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it ap pears that the buyer relies on the seller’s skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.”
Defendant was entitled to have the substance of the above act given to the jury. For failure to do so the judgment is reversed and a new trial granted. Defendant may recover costs.
Bushnell, Boyles, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred. | [
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] |
Bird, J.
Defendant was informed against and convicted of having promoted a lottery contrary to the provisions of section 15050, 3 Comp. Laws 1915. The proceedings of the trial court are here for review upon writ of error. The record discloses that defendant was the owner of and operating the Bradley Tailoring Company in the city of Detroit. He sold tailor-made suits for $48, payable $1 a week. The person to whom a sale was made was given a number and a card upon which was receipted the weekly payments. Each week a suit was discounted or given to one of the customers. The particular customer chosen, was then entitled to the suit regardless of the amount which he may have paid. The following advertising matter and contract will give an idea as to how the business was conducted:
“Advertising Plan.
“In order to advertise our business on a broader principle and continually increase our sales, we will discount a $48 suit each week, regardless of the amount paid.
“The company reserves the right to discount the above price of one suit every week to any extent it may see fit, as per advertising plan. The contracts receiving a discount will be selected by the management. The above is not intended as an inducement for the original purchase, but is our method of advertising.
“It is expected that a customer receiving one of our advertising garments will use his influence in securing new accounts, and allow us to use their names as having received one of our garments.
“Bradley Tailoring Co.
“Makers of High Grade Tailored to measure Garments At $48.00 and up.”
“Contract.
“In consideration of 48 payments of One Dollar in advance each week, the Bradley Tailoring Co., agrees to sell to the holder of this contract, a firstclass made-to-measure suit to the value of $48.
“No orders will be accepted on clothing for less than $48, and no money will be returned on discontinued or lapsed contracts. However, we will re-instate your contract on' receipt of delinquent payments, or apply the amount paid in to any $48 garment at any time.
“Agents are expressly prohibited from making any agreements contrary to the terms herein specified.
“You do not have to wait 48 weeks before ordering your garment.
“You may order same at any time, and apply all payments credited on this contract.”
Counsel requested the court to charge the jury that this method of doing business was not in violation of the following statute:
“Every person who shall set up or promote, within this State, any lottery or gift enterprise for money, or shall dispose of any property, real or personal, goods, chattels or merchandise or valuable thing, by way of lottery or gift enterprise, and every person who shall aid, either by printing or writing, or shall in any way be concerned in the setting up, managing or drawing of any such lottery or gift enterprise, or who shall! in any house, shop or building owned or occupied by him or under his control, knowingly permit the setting up, managing or drawing of any such lottery or gift enterprise, * * * shall for every such offense be punished by a fine not exceeding two thousand dollars, or by imprisonment in the county jail not-more than one year.” 3 Comp. Laws 1915, § 15050.
The refusal of the court to comply with the request furnishes one of the important questions in the case..
1. It is said that the essentials of a lottery are r First, consideration; second, prize; third, chance. (17 R. C. L. p. 1222.) There need be no question! under this scheme about the element of consideration, or prize, but it is contended that there is no element of chance in the transaction, that one buys a suit for $43 and gets it, and beside he may get his suit discounted before he makes 48 payments. Herein lies the element of chance. By purchasing a suit for $48 one gets the chance of acquiring it before he pays for it, or before he pays the $48. This chance is. the seductive thing about the scheme and it is this which attracts the investor. But it may be said that there is no element, of chance because there is no drawing, that the management itself selects the beneficiary; but this fact does not purge the transaction of all element of chance. To the purchaser it is uncertain, as to him it is chance. As was said in a similar case;
“The same contention was made there (State v. Clarke, 33 N. H. 329) as in this case, that the choice of persons to receive the furniture was not by lot or chance, but by the judgment of the company which proposed to sell; but the court rejected it, and thus showed its fallacy: ‘With the purchaser, what prize he might obtain was a mere matter of lot and chance. The scheme involved substantially the same sort of gambling upon chances as in any other kind of lottery. It appealed to the same disposition for engaging in hazards and chances with the hope that luck and good fortune may give a great return for a small outlay, and is, we think, within the general meaning of the word “lottery,” and clearly within the mischief against which the statute is aimed.' Randle v. State, 42 Tex. 580.” State v. Lipkin, 169 N. C. 265 (84 S. E. 340, L. R. A. 1915F, 1018, Ann. Cas. 1917D, 137).
We are unable to distinguish the case under consideration in principle from People v. McPhee, 139 Mich. 687. In that case a club was formed and weekly payments made for men’s clothing. It differed in this, however, that the members of the club determined by some method of chance the particular member who was entitled to the weekly suit. This difference, as is pointed out above, is not controlling if there is some element of chance in it. A case which is still more similar on the facts is the case of State v. Lipkin, supra. This is an instructive case and reviews the authorities at length. We are of the opinion that the recorder was correct in holding that the transaction came within the inhibition of the statute.
2. It is next asserted that defendant should have had a directed verdict because the offense was not proven as alleged. The time alleged in the information was, “to-wit, on the 2d day of February in A. D. 1920, and on divers other days and dates between the 2d day of February, A. D. 1920, and the 4th day of March, 1920.” It did not clearly appear that any of the contracts were made between those dates, but it did appear that defendant made collections between those dates on contracts which had been previously made. The contracts in evidence bore the dates of October and November, 1919. Defendant testified in his own behalf and described his method of doing business and the taking of contracts during the year preceding the 1st day of January, 1920. There was also some proof that one contract was made on February 19, 1920. Defendant had an examination before the justice and was fully informed as to what the prosecution relied upon. It is not claimed that any surprise or prejudice resulted from the variance, if there were one. Time was. not an ingredient of the offense and, therefore, was not very important. No error resulted in refusing to direct a verdict on this ground.
3. Exception is taken because the trial court instructed the jury as follows concerning defendant:
“Of course, you have the right to consider that he is the defendant charged with this offense and that he is likely to give such testimony as will most likely result in his acquittal.”
This should be read in connection with all of the instruction on that phase of the case. The trial court said to the jury that a defendant in a criminal case is not obliged to take the stand in his own behalf and the fact that he fails to take the stand cannot be used against him by the court, jurors or counsel. Then proceeding, he said:
“Having taken the stand, you men should weigh his testimony carefully and give it such weight as you think it deserves. Of course, you have the right to consider that he is the defendant charged with this offense and that he is likely to give such testimony as will most likely result in his acquittals because he has an interest in the outcome of this case; but, notwithstanding that, you should weigh his testimony care fully, just as. you should weigh the testimony of all witnesses in every case carefully, with an endeavor to arrive at what the true facts áre: Because, after all, gentlemen of the jury, you men must find the facts that have been proven by the evidence. * ' * * It is for you to say which of the witnesses you believe and which you disbelieve, and, having ,seen the witnesses on the stand, including the defendant at the bar, it is for you to say whether or not the State has proved his. guilt beyond all reasonable doubt.”
It, perhaps, would have been better if the court had omitted the particular language complained of, but we are unable to persuade ourselves that defendant’s interests were in any wise prejudiced by the statement. The statement was true, and every juror knew it, as well before the instruction was given as he did afterwards. It was simply a frank statement of the obvious human side of the situation. If it can be said to be error at all it was not such error as should reverse the case.
We have examined the remaining assignments but find no error in them. It will be unnecessary to consider them further.
The judgment of conviction will be affirmed.
Steere, C. J., and Moore, Fellows, Stone, Clarke, and Sharpe, JJ., concurred.
The late Justice Brooke took no part in this' decision. | [
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Clark, J.
The board found that the death of plaintiffs husband, a boiler maker in the employ of the defendant employer, was accidental and arising out of and in the course of the employment. Compensation was awarded. Defendants here contend that as a matter of law the proofs do not support the; findings and their counsel say that this case falls within the rule announced in Chaudier v. Stearns & Culver Lumber Co., 206 Mich. 433.
“Where two inferences equally consistent with the facts arise out of established facts, one involving liability on the part of the employer under the act, and the other relieving him from liability, the applicant must fail.” Citing, also, DeMann v. Engineering Co., 192 Mich. 594; Hills v. Blair, 182 Mich. 25; Draper v. Regents of University, 195 Mich. 449; McCoy v. Michigan Screw Co., 180 Mich. 454 (L. R. A. 1916A, 323).
The language quoted is an elaboration of the rule that a finding.must have support in fact; it may not rest upon conjecture. In this case there is evidence, to support defendants’ contention that the death was not accidental and there is evidence to support the finding of the board. Counsel have summarized the evidence supporting their contention and that supporting the board’s finding to show that an inference favoring their contention is as reasonable or more reasonable than one opposed to it. But this does not put the finding, having evidence to support it, into the realm of conjecture. Generally an issue of fact consists of a direct affirmative allegation on one side and a direct negative on the other. See 2 Bouvier’s Law Dictionary (3d Ed.), p. 1687.
The statute, 2 Comp. Laws 1915, § 5465, provides:
“The findings of fact made by said industrial accident board acting within its powers, shall, in the absence of fraud, be conclusive.” * * *
Of this statute counsel say:
“That this section of the act is not authority for loosely stating that if there is any testimony in the record to support the board’s findings, such findings are final is apparent if any effect is given to the words of the statute; 'within its powers.’ * * *
“To be more specific, in those cases in which there are two inferences equally consistent with the facts arising out of established facts, one making the employer liable, and the other relieving him from liability, the mere fact that there is some evidence in the record to support the inference drawn by the board favorable to applicant does not dispose of the case because applicant has not established the burden of proof.”
If we are to determine when the plaintiff has met the burden of proof we must try the facts. But we have held again and again that the board is the trier of the facts. See Kropf v. Michigan Bean Co., 211 Mich. 454; Ginsburg v. Adding Machine Co., 204 Mich. 130; Wilson v. Phoenix Furniture Co., 201 Mich. 531; Deem v. Kalamazoo Paper Co., 189 Mich. 655; Perdew v. Nufer Cedar Co., 201 Mich. 520; Vogeley v. Detroit Lumber Co., 196 Mich. 516.
We think the evidence adduced by plaintiff furnished a basis in fact for the finding of the board. Such evidence is reviewed briefly. George Patón, plaintiff’s husband, 38 years of age, strong, who had always enjoyed good health, a boiler maker who had worked as regularly as boiler makers-usually do, and in this employment about 10 years, was found dead in the fire box of a boiler at the plant of the defendant employer at Port Huron on August 14r 1919. In a room about 60 feet by 120 feet in which other employees also worked, on this day Patón was engaged in testing, caulking and riveting a boiler. Water pressure was applied to the boiler to show leaks. The front end of the boiler was set upon a bench 3% feet from the floor. The other end was on a block 18 inches from the floor. The boiler was connected to the ground by a water pipe. The fire box in which he was working was 36 inches long and 24 inches wide and 40 inches high. He entered the fire box through the fire hole 13% by 14% inches. Below was the draught hole 6 by 10 inches. Patón had a plank on the bottom of the fire box and a box about 6 inches square on which to sit while working. The caulking was done by means of an air hammer, about 20 inches long, weighing 8 or 10 pounds, operated by compressed air supplied through a hose of rubber and canvas. A tool about 7 inches long, weighing about 12 ounces, was used. Patón held the hammer in his right hand, the tool in his left. For light an extension cord ran from the ceiling of the room and was hung on a rivet at the top of the inside of the fire box. There was a wire cage around the electric light bulb and a handle of wood about 4 inches long through which the cord ran. The cord was insulated. The light could be operated by a button in the cord outside the boiler. Patón seemed well that morning, ate lunch about 9 o’clock, and returned to his work in the fire box. Shortly afterward another employee looked in the fire box and saw the electric light burning. Patón was sitting in a corner; a little stream of water going past his face. There was: water in the bottom of the fire box not quite over the plank. The employee jokingly remarked that Patón was drowning in there. Pontine, Paton’s working partner, then recalling that he had not heard Paton’s hammer for “about a minute” went to the door of the fire box. Patón was dead, sitting about in his usual position, leaning against the boiler, the hammer across his chest, the tool in his hand. In removing Paton’s body from the fire box and in removing the light cord employees suffered electric shocks. The electrician of the plant later examined the light cord and said it was wet and leaking.' Seemingly because of the water and dampness electric shocks were not uncommon in the work. From this same cord witness Pontine had received a shock before the day of the accident. The current was alternating. The voltage was 110. Dr. Howard, employer’s physician, sent for a pulmotor. It was not used but other means of artificial respiration were attempted. Dr. Howard testified:
“Q. Do you know what is done in the case of a person who has received an electric shock sufficient to render him unconscious?
“A. Yes.
“Q. What is done?
“A. Same procedure as you use for a drowning person.
“Q. The same as you used that day?
“A. Yes.”
There was much testimony of a burn on one of Paton’s hands and some testimony that it had been caused by electricity. Physicians did a post mortem. Other physicians examined the body later. The medical testimony is conflicting but there is testimony sustaining the finding of the board of death by electric shock, and this finding also has some support in the conflicting testimony of electfical experts.
The award is affirmed, with costs to the plaintiff.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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Sharpe, J.
This case was before this court in 200 Mich. 259. A reference to that opinion will obviate the necessity for a lengthy statement of facts. It was there decided that on the record as made a verdict should have been directed for the defendant and a new trial was ordered. On such trial the case was again submitted to the jury and a verdict again rendered for. plaintiff. Defendant’s motion for a new trial was denied, and the case is? again before us for review on writ of error. Without specifically referring to the several assignments we will consider those discussed by counsel for defendant in their brief.
A motion for a directed verdict was made and denied. Counsel insist that the record now made contains no more evidence than the former one tending to show that plaintiff’s mortgage covered the property in question and that a verdict should have been directed in his favor. In the former case it was said:
“It appears that at the time the $8,000 mortgage was executed by defendant to plaintiff, the grape juice plant was equipped with machinery.”
It was further said:
“Nor does it appear that the money was advanced by either of the mortgagees to the mortgagor for the purpose of purchasing equipment for the plant.”
We quote from the cross-examination of defendant in the record now before us:
“At the_time of this $8,000 mortgage to O’Dell there was no juice plant on the land * * * This money was borrowed from O’Dell to take up' a $2,000.00 mortgage which was due and the rest of the money was spent in building this plant.”
The plaintiff testified:
“I told him a loan of this kind was perilous because he had his loans divided up as he did and because I didn’t agree with his values on vineyard lands. He gave me Exhibit A at this time. This is the conversation about it. He said all the money was going into the plant and machinery and enhanced the value of the security. I said that was true and if business relations were consummated between us as we figured it would be, that there was a period and time at which material would be there before it went into the building and before the building could be finished. He satisfied me as far as the building was concerned but not as far as the machinery would be concerned. He then asked what he could do, how he could satisfy me and I told him it would be necessary for him to give me a chattel mortgage on the machinery until it was attached to and became a part of the building and was put into it and used as a factory. And that he agreed to do. I told him to put it in writing. He left the office and came back again and had it in writing and the next day we drew the mortgages and I gave him the money.”
The writing, in the form of a letter addressed to plaintiff and signed by the defendant, reads:
“I write to confirm our verbal arrangement and that is that as soon as I build and install the machinery for the juice plant, which I intend to do with the money I am borrowing from you, I will give you a chattel mortgage on the same.”
Plaintiff further testified that when the plant was completed he saw defendant and—
“I said, ‘Mr. Day, I see you have got the machinery here.’ And he said, ‘Yes.’ And I said, ‘Well, how about the mortgage you were to give me on it?’ ‘Well, he says, ‘it is all attached to the building now, and,’ he said, ‘I have been so awful busy and I am short of time,' he said, T didn’t bother with it.' He says, I intended to write you about it but I have been working here late hours at night, but it is in the building, and,' he says, T guess you are satisfied with your security, aren’t you ?’ ”
Further evidence of the intention of the parties is supplied by the letters written by defendant to plaintiff, quoted at length in the former opinion. The only purpose defendant could have had in writing them was to seemingly admit that plaintiff was entitled to the equipment in the plant and thus lull him into fancied security until he might remove the machinery therefrom. No specific rule can be laid down designating when articles not permanently attached to the realty become subject to a mortgage thereon. The general subject was recently considered by this court in Morris v. Alexander, 208 Mich. 387. We content ourselves with approving what was there said by Mr. Justice Fellows. Under the evidence here presented, the .motion to direct a verdict was properly denied.
Counsel for defendant insist that the talk between the parties and the letters written by defendant were not admissible in evidence because tending to “alter, vary, enlarge and change” the written mortgage. With this we cannot agree. The mortgage described the real estate on which the plant and its equipment were located. The issue presented was whether it was the intention of the parties that the equipment should become a permanent accession to the freehold. See Morris v. Alexander, supra.
Plaintiff was permitted to show that he had paid the claims of the vendors to certain of the property replevined after the suit was begun. While the plaintiff in replevin must prove that he was entitled to the possession of the property described in the writ on the day of its issue, we fail to see how the receipt of this evidence was in any way prejudicial to the defendant. As between the plaintiff and the vendors of the machinery and equipment of the plant, a different question might be presented. Here the dispute is between the owner of the real estate and a mortgagee. The trial court very clearly instructed the jury that the only question for them to pass upon, aside from the damages, was whether the mortgage covered the property described in the writ.
Counsel for the plaintiff called the defendant for cross-examination under the statute (3 Comp. Laws 1915, § 12554). When he had concluded, counsel for the defendant examined him at length on the entire issue presented. After the defendant had rested, plaintiff was permitted, over the objection of defendant, to introduce testimony tending to impeach him. We think this was permissible. This statute has been many times before this court for construction. Jones v. Railroad Co., 168 Mich. 1, 14; Johnson v. Carbide Co., 169 Mich. 651, 659; Seebach v. Railways Co., 177 Mich. 1; Rathbone v. Railway, 187 Mich. 586, 590, 601; Aphoresmenos v. McIntosh, 189 Mich. 680, 683. The most recent utterance on the subject is found in Steele v. City of Ionia, 209 Mich. 595, 600. It was there said:
“A Mr. Girard who had for 19 years been water commissioner of the city, having charge of its waterworks and sewers, was called by plaintiff as an adverse witness under the statute (3 Comp. Laws 1915, § 12554). After plaintiff’s counsel had completed his cross-examination, the witness was fully examined by defendant’s counsel before the motion for a directed verdict was made and much important testimony was given by him. We do not understand counsel to agree fully as to the force to be given this witness’ testimony. It will be sufficient that we say that under the terms of the statute plaintiff was not bound by the testimony of this witness and was at liberty to call such witnesses as she desired to dispute his testimony, but as to such testimony as this witness gave upon his examination by defendant’s counsel as is undisputed, it must be treated as though introduced by defendant from a witness originally called by him with the same benefit as though the witness was examined in the first instance by defendant’s counsel. In other words, while plaintiff was not bound by anything this witness testified to,’ and could dispute all testimony given by him, this did not deprive the defendant of the right to examine him as its witness or to the benefit of the testimony given by him upon such examination. Such facts as were testified to by him upon such examination and which are undisputed must be given the same effect as though elicited from a witness originally called by defendant.”
If the facts testified to by defendant when examined by his own counsel “must be treated as though introduced by defendant from a witness originally called by him with the same benefit as though the witness was examined in the first instance by defendant’s counsel,” we can see no reason why such witness is not subject .to the same rules relative to impeachment as apply to any other witness who might be called by the defendant.
The third reason assigned by defendant why a verdict should have been directed in his favor was that under the evidence the plaintiff is estopped from claiming title to the property in question. This is based on the claim that in certain proceedings in defendant’s bankruptcy matter, plaintiff, as attorney for a creditor, insisted that a part of this property was personalty and the title thereto in the vendors thereof.
In order that the conduct of the plaintiff should constitute an estoppel, it must appear that the defendant had acted to his prejudice relying on it. In Detroit Savings Bank v. Loveland, 168 Mich. 168, this court said:
“Estoppel is a bar which precludes a person from denying the truth of a fact which has in contemplation of law become settled by the act of the party himself, express or implied. If one’s conduct induces another to believe in the existence of certain facts, and the other acts thereon to his prejudice, the former is estopped to deny that the state of facts does in truth exist. 16 Cyc. p. 680, and cases there cited. Bigelow on Estoppel (5th Ed.), p. 570.”
The rights of the defendant in this suit were in no way affected by such action of plaintiff. In the case here presented, the rights of third parties are in no way involved.
We have carefully examined the entire record, having in mind all of the assignments of error, and feel constrained to hold that the case was fairly tried and properly submitted to the jury.
The judgment is affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred. | [
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Steere, C. J.
Charles F. Adams made application to this court in legal form for a writ of habeas corpus to obtain custody of his daughter, Donavieve Adams, a child born December 6, 1914, charged to be illegally restrained of her liberty and from his custody by William Hulbert and Allie M. Hulbert, his wife. It appears from said writ, together with return to same and to an auxiliary writ of certiorari issued to the probate court of Allegan county in connection therewith, that Charles Adams was, and had been for some years, .a resident of North Muskegon, Muskegon county, where his wife Bessie Adams died on October 18, 1917, survived by her husband Charles and daughter Donavieve, then about 3% years old. Her 'body was taken to her former home in the village of Otsego, Allegan county, for burial. Allie M. Hulbert, her sister, and her husband, William Hulbert, resided in the township of Otsego in said county. Shortly after his wife’s burial Adams left his daughter Donavieve with the Hulberts in charge of her aunt, at their request and with the promise she would be returned when called for by Adams or his mother, as he claimed. This the Hulberts deny, claiming he simply left the child with them, after which he neglected and did nothing for her. They refused to surrender her when requested and Adams made several unsuccessful demands of them for her, which it is indicated resulted in much ill feeling between them. In February, 1918, he went to the Hulbert home accompanied by his mother and the sheriif, and there made-a demand for custody of his child which they again refused. Soon thereafter on February 13, 1918, William Hulbert petitioned the juvenile division of the probate court of Allegan county in behalf of said “Donavieve B. Adams, dependent and neglected child,” stating she was in the custody of himself and wife, that her mother was dead and her father had “not taken care of her for at least three months, perhaps four, * * * appears only at intervals to demand the custody of the child” and gave several reasons why, as deponent thought, “something should be done to deprive him of the right of said child.” Thereupon further proceedings were had ostensibly under the statute providing for disposition of dependent and neglected children, resulting in the court declaring Donavieve Adams “a dependent and neglected, child and a ward of the court,” and committing her as such to the State public school at Coldwater. This was followed with alacrity by an application of the Hulberts to that institution for custody of the child and an agreement in customary form signed by the superintendent of the school and Mrs. Hulbert appointing her guardian of and committing the child to her care and custody until 18 years of age. Later, based on consent of the superintendent of said school and the county agent of Allegan county, the Hulberts obtained letters of adoption of the child from the probate court.
These matters were all ex parte so far as the child’s father was concerned. He had long been a resident of Muskegon county and claimed to have been in Allegan county when proceedings were commenced in the probate court. There is no proof he had knowledge or notice of them while they were pending. He subsequently filed a petition in the probate court for dismissal of the order declaring his child dependent and neglected, on the ground it was obtained by fraudulent representations, and the court imposed upon thereby, which the probate court refused to entertain because “more than 90 days have elapsed since the making of said order.” From this he did not appeal, but in the latter part of 1919 made application to the circuit court of Allegan county for and obtained a writ of habeas corpus to inquire into the cause of detention of his child by the Hulberts.
Two defenses were interposed against the right of the father, first, that the probate proceedings were res adjudicaba and the inquiry could not be pursued further; and, second, that the father was not a fit person to have the custody of his child, which was necessarily a question of fact. On the hearing the circuit court apparently gave little weight to the probate proceedings, but heard the testimony of the respective parties upon the question of the father’s charged abandonment and neglect, his situation, character, fitness, ability to provide, care for and rear the child in proper environments, etc., concluding upon the showing then made it was for the best interest of the child that she remain in the custody and under the care of William Hulbert and wife “until the further order of the court,” subject to right of the father to visit her at stated times.
Of the probate proceedings, palpably initiated by Hulbert under an inappropriate statute as a means of retaining custody of the child under color of law, it is sufficient to say they furnished no protection against an investigation by the circuit court in habeas corpus proceedings and an award of custody of the child between the contending parties according to her best interests, and adoption based on such proceedings is on no firmer grounds. It would seem that in the course pursued in those proceedings the Gould Cases were overlooked. In re Gould, 171 Mich. 540; 174 Mich. 664. The circuit court of Allegan county had jurisdiction to determine the matter. No application was made to review the same. Its award was made under then found conditions, to stand until further order of the court. Conceding the decision was conclusive under the then shown conditions it was yet left open to the further order of the court, not a fina! judgment against an application for another writ based on changed conditions with a further or different showing to meet the facts found by the court to prevail against the natural rights of the father to the custody of his own offspring. The law makes him her guardian by nature and for nurture, prima facie entitled to her care and custody. Bearing in mind also the child’s best interests, the courts will primarily “feel bound to restore the custody where the law places it, with the father, unless in a clear and strong case of unfitness on his part to have such custody.” Commonwealth v. Briggs, 16 Pick. (Mass.) 203. Where not precluded on other grounds, the court which held him unfit may entertain an application to show that the unfitness by reason of which custody was denied has been removed.
In this proceeding applicant represents he can show by numerous credible witnesses not only that the aspersions against his habits and conduct to which the circuit court gave, heed are not well founded, but also that changed conditions eliminate the reasons recognized by the court at that time as persuasive against him; that he now has steady employment at good wages, is married and established in a comfortable home with a wife of kindly disposition and good character who joins in his desire to have his child with them, and that they are ready, able and anxious to take, provide for and rear her in a good home with proper environments and training.
To that end the circuit court which originally took jurisdiction, issued process on his application and disposed of the matter “until further order of the court,” is yet open to him. Under such circumstances this court will not assume original jurisdiction in the matter by writ of habeas corpus.
The writ is denied.
Moore, Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Sharpe, J.
The plaintiff seeks to enforce a lien, under the provisions of 3 Comp. Laws 1915, § 14796 et seq., for material furnished Clayton M. Diebler, a contractor, in the erection for defendant Swanston of a two-family flat building in Detroit. A statement of lien was filed on August 7, 1917, in which it is stated that the last of the material was furnished on the 11th day of June, 1917. Diebler abandoned the building before completion but, as he claims, after all the material furnished by plaintiff had been used. Plaintiff had decree for $1,641 and interest, amounting in all to $1,907.66, from which the defendant Swanston appeals. We will consider the questions raised by defendant’s counsel in the order discussed in their brief.
It is claimed .that the statement of lien was not filed within 60 days after the date when the last of the material was furnished, as required by section 14800. The bill of complaint was sworn to by an officer of the plaintiff company. Section 14805 provides that—
“All bills sworn to shall be evidence of the matters therein charged, unless denied by answer under oath.”
Defendant’s answer was not sworn to. An answer on oath, however, was expressly waived in the bill. In the opinion filed, the trial court said:
“The bill of complaint has been offered in evidence, and it, with the proofs offered in the case, fully establish the fact that the material was furnished in time to establish a lien.”
While the proof is not of that satisfactory character to be desired, owing somewhat to the loss by fire of the contractor’s books and papers, we think it fairly establishes that the last of such material was furnished on June 11, 1917. The statement of lien was filed on August 7, 1917, within 60 days thereafter.
It appears that while the work was progressing the defendant Swanston mortgaged the property in question to the defendant Vogt and authorized him to make payments on the contract out of the proceeds of such loan, and that thereafter all payments were made by Vogt. At the time of making such payments, Vogt secured from Diebler the sworn statements provided for in section 14799. In securing such statements and making payments, Vogt was the agent of Swanston within the meaning of this section. The first statement listed plaintiff as having furnished material to the amount of $800, but its name did not appear in any subsequent one. The defense that Swanston is relieved by requiring such statement and making payments pursuant thereto is answered by plaintiff with the claim that it caused a notice that it was furnishing material to the contractor to be served on Swanston, as provided for in section 14796. This notice, if served, imposed the duty on Swanston and Vogt as his agent to see to it that plaintiff was paid before paying any money to Diebler, as it is admitted was done. There is much dispute whether or not this notice was served. Swanston denies having received it. One Wagner, an employee of plaintiff, testified that he served it. Were there no other testimonjr bearing on the question, there would be force in the contention that the burden of proof resting on plaintiff is not sustained. But Diebler and his wife and plaintiff’s secretary, Gustav Scheurman, all testified that Swanston told them he had received such a notice. We think the trial court was fully justified in finding that the notice was served.
Defendant Swanston strenuously insists that “plaintiff under any circumstances cannot recover the full amount of its claim.” The contract price, of which the plaintiff had knowledge, was $4,500. Swanston contends that Mr. Vogt as his agent paid to laborers, and materialmen under the sworn statements $1,658.33; that it cost to complete the building, after Diebler abandoned the job, $1,077.60,” that Swanston himself furnished the chandeliers, which were included in the contract, at a cost of $87; that hot air furnaces were installed, costing $355 less than the steam plant contracted for, and this should be deducted from the contract price. This would leave but $1,322.07. Under the decree, plaintiff was given a lien in the sum of $1,641 and interest.
We think it a sufficient, answer to this claim to say that there is no competent evidence on which to base the allowance of $355 for difference in the cost of the heating plants. The contract, a copy of which is in the record, contains no reference to heating plants. It provides for construction “according to the plans, drawings, details, and specifications.” These were not produced. As, to this item, the only specific testimony offered is that of Mr. Vogt, who said:
“I testified that the original house was to have a steam plant. I later put in hot air furnaces, which cost $245. A steam plant at that time would have cost about $600. Instead of that I put in a hot air furnace at $245.”
If we eliminate this item, there would be a balance of the contract price, for which plaintiff might claim a lien, in excess of the sum decreed.
After a careful examination of the entire record, we are of the opinion that the decree rendered was justified by the proofs. It is affirmed, with costs to plaintiff.
Steere, C. J., and Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred. Moore, J., did not sit. | [
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Bird, J.
In the chancery case of Mast v. Purchase, 163 Mich. 35, which was a bill of complaint charging misappropriation of trust funds, a decree was entered against George H. Purchase, the husband of defendant, for the sum of $11,092.31. Purchase having since died, leaving no visible estate, this bill was filed to reach assets in the hands of defendant, which it is claimed legally and equitably belong to her husband’s estate. The case came on for hearing, and it being disclosed by a stipulation of facts that George H. Purchase was arrested and imprisoned on a capias ad satisfaciendum to satisfy said decree, and was subsequently discharged from custody upon his application under the provisions of the poor debtors’ act, the chancellor, upon motion, dismissed plaintiff’s bill, holding that the discharge of Purchase under the poor debtors’ act operated as a satisfaction of the decree. Plaintiff appeals, raising several questions, chief of which 'is, whether the discharge of an execution debtor under the provisions of our statute for the relief of poor debtors is a satisfaction of the debt.
It is undoubtedly true, as contended by defendant, that there are many statements in the books to the effect that at common law the taking of the body of the debtor in execution is a satisfaction of the debt. This statement of the rule is a general one and may be technically correct. It certainly is correct while the debtor is in prison, because during that period no other process can issue to enforce the judgment. But this general rule has its exceptions. The cardinal exception being when the debtor is released or discharg ecL without the consent of the plaintiff it is no satisfaction of the debt. If the debtor escapes, dies in prison, or is discharged by operation of law, it is adjudged to be without the consent of plaintiff and, therefore, no satisfaction of the debt. On the other hand, if it can be shown that the escape or release had the consent of plaintiff, then the debt is adjudged to be satisfied. It is not improbable that the failure to note the; exceptions, when stating the general rule, is responsible for much of the apparent variance among the cases. In most of them the general rule and the exceptions are stated together,. hut in some of them the general rule is stated and no mention is made of the exceptions.
One of the clearest and most comprehensive statements of the rule which has come under our observation is made in State v. Simpson, 46 N. C. 82. It is there said:
“It is well settled, that where a defendant is arrested, upon a ca. sa. in a civil suit, and is discharged, by the direction, or consent, of the plaintiff, it is in law a discharge of the debt, but where he is discharged by operation of law, as by an insolvent act or act of bankruptcy, or where he dies in prison, or escapes, it is not a discharge of the debt.”
An examination of the numerous cases cited by counsel will disclose that most of- them will square with the rule as above stated.
In reviewing the> law relative to writs of capias ad satisfaciendum the American & English Encyclopedia has this to say upon the question:
“The rule is laid down in some of - the cases that at common law the taking of the body of a defendant in execution amounts to a satisfaction of the judgment. According to the weight of authority, however, imprisonment on a body execution does not absolutely extinguish the judgment, but operates as a satisfac tion thereof so long as the imprisonment continues, and suspends for the time being all other remedies of the creditor against the debtor.” 16 Am. & Eng. Enc. Law (2d Ed.), p. 49.
In 4 Comyn’s Digest of the Laws of England, p. 241, it is stated under the heading “When execution may be after a former execution:”
“So, by the st. 21 Jac. 24. If a man dies in execution, it may afterwards be sued of his lands or goods.
“So, before that statute: For the body was not a satisfaction, but a pledge only for the debt, R. 5 Co. 87. R. cont. Cro. El. 850. 2 Cro. 136, 143. R. cont. per 3 J. Hob. 60. Mo. 858. 1 Rol. 903. 1. 40.
“So, since that statute, shall it be without question.
“So, if one of the defendants escapes, the plaintiff may afterwards sue execution against the other, though he has a remedy against the sheriff. R. 5 Co. 86 b. Cro. El. 555, 573. Cont. Mo. 459. R. acc. 2 Cro. 532. R. Cro. Car. 75. Vide Escape (E).
“So, if the conusor upon a statute of recognizance escapes, the conusee shall have execution against his lands and goods. R. 5 Co. 86 b. 87 b.”
Blumfield’s Case, 3 Coke, 174, is one of the early English authorities on the question. It is there said, in part:
“So, if the conusor be taken, and dies in execution, the conusee shall have execution of his goods and lands. And it was adjudged Pasch, 24 Eliz. in the common pleas between Jones and Williams, that where two men were condemned in debt, and one was taken and died m execution, yet the taking of the other was lawful. And then it was resolved by the whole court, that if the defendant in debt dies in execution the plaintiff may have a new execution by elegit, or fieri facias, for divers reasons.
“1. Because the plaintiff shall not be prejudiced, nor the defendant benefited by the act and wrong of the defendant, in nonpayment of his debt, when no default is in the plaintiff, he having pursued the due and ordinary course of law.
“2. The. execution of the body is no satisfaction (as appears in 4 H. 7, 8, & 33 H. 6 (f) 47. Hillary’s Case adjudged but a gage for the debt; as. where a man has returned irreplevisable awarded, as it is said in 33 H. 6, 46, and therefore after his death he shall resort to a new execution. * * * So that his body is taken to the intent that he shall satisfy and when the defendant pays the money, he shall be discharged out of prison.
“3. The death of the defendant is the act of God, which shall not turn to the prejudice of the plaintiff, as it is said that in Trewinyard’s Case, 38 H. 8, Dy. 60, the plaintiff shall not be prejudiced of his execution by act of law, which doth not wrong to anyone.
“4. It would be mischievous to the plaintiff to lose his debt without any default in him, and no mischief if a new execution should be done, for nothing would be liable to his new execution, but the lands and goods of the defendant, which in law and all equity ought to be subject to the payment of his debts.’’
In Nadin v. Battie & Wardle, 5 East, 147, the defendants were arrested and imprisoned on a ca. sa.. Wardle was subsequently discharged under an insolvent debtors’ act. Battie then moved for his discharge on the ground that his co-defendant had been released. The court said: |
“The discharge cannot be said to have been with plaintiff’s assent, because he did not choose to detain the party in prison at his own expense. Nor can the law, which works detriment to no. man, in consequence of having! directed the discharge of one defendant, so far implicate the plaintiff’s consent, against the fact, as to operate as a- discharge of the other.”
Blackstone, in treating of the writ, recognizes the right of the plaintiff to have execution against the debtor’s goods and chattels if he is discharged without his consent as by operation of law:
“But, by statute, 32 Geo. II., chap. 28, if a defendant, charged in execution for any debt not exceeding 100£ will surrender all his effects; to his creditors (except his apparel, bedding, and tools of his trade, not amounting in the whole to the value of 10£) and will make oath of his punctual compliance with the statute, the prisoner may be discharged, unless the creditor insists on detaining him; in which case he shall allow him 2s. 4d. per week, to be paid on the first day of every week, and on failure of regular payment the prisoner shall be discharged. Yet the creditor may at any future time have execution against the lands and goods of such defendant, though never more against his person." 2 Cooley’s Blackstone (4th Ed.), p. 416.
See, also, 11 Viner’s Abridgement, 28; Hillary’s Case (1460), Y. B. Hen. VI. 47; Thompson v. Parish (1859), 5 C. B. (N. S.) 685; Linacre v. Rhode (1589), 2 Leonard, 96.
Sharpe v. Speckenagle, 3 Serg. & R. (Pa.) 463, is an early American case and involves the liability of a ¡surety for a debtor who was imprisoned and subsequently discharged under the insolvent laws. The court said:
“It is not pretended, that the insolvent act discharged Oellers from the debt; it only discharged him from imprisonment. But the counsel for the defendant contends, that the arrest of Oellers on the capias ad satisfaciendum was, in itself, a satisfaction of the debt, and therefore it amounted to a discharge of the recognizance. That the arrest on a capias ad satisfaciendum is, in itself, a satisfaction of the debt, is a position not to be maintained, unless the plaintiff consented to the discharge; then indeed the debt is gone.”
The Federal Supreme Court considered the question in the case of Tayloe v. Thomson, 5 Pet. 358. In disposing of contentions similar to those made in the instant case, it was said:
“If the defendant escape, or is discharged by operation of law, the judgment retains its lien, and may be enforced on his property. The creditor may retake him, or sue the sheriff for the escape. A judgment against him does not amount to a satisfaction of the original debt, but it retains its lien until the plaintiff has done or consented to some act, which amounts in law to payment; as the discharge of defendant from custody, or, in some cases, a levy on personal property. But we know of no rule of law which deprives a plaintiff ^ a judgment of one remedy by the pursuit of another, or of all which the law gives him. The doctrine of election, contended for by the plaintiff in error (i±J it exists in any case of a creditor, unless under the statutes of bankruptcy), has never been applied to a case of a defendant in execution discharged under an insolvent act, by operation of law; a contrary principle is recognized, as well settled, in 5 East, 147.
«The greatest effect which the law gives to a commitment on a ca. sa. is a suspension of the other remedies on the judgment during its continuance; whenever it terminates without the consent of the creditor, the plaintiff is restored to them all as fully as if he had never made use of any.”
It is said in Bannister v. Miller, 54 N. J. Eq. 126 (32 Atl. 1066), that:
“The defendants claim immunity from liability upon another ground. This matter of defense rests upon the following facts appearing in the case. It appears that the actions brought by the complainants, in which the judgments already mentioned were recovered, were commenced by capias ad resporod&ndvm, and after the return of execution capias ad satisfaciendum were issued, upon which the sheriff took the bodies of the two Millers into custody. They were discharged from arrest, pursuant to the provisions of the insolvent debtors’ act, having made and delivered an inventory of their property and given bond.
“The defendants insist that the complainants, having elected to proceed against the bodies of the Millers, are barred from proceeding in any other method, and that as to the complainants, their debts must be regarded as satisfied.
“There is no substance in this contention. The fact of a discharge under the insolvent act, by the express terms of section 28, is to relieve the debtor’s person from liability to imprisonment for any provable debts against him at the time of the assignment made by him under the act, subject to this restriction only — the creditor is free to pursue his remedy against the discharged debtor or his property for any .debt.”
The question came before the Kentucky court in Scott v. Colmesnil, 30 Ky. 417, and it was observed that:
“The imprisonment of Lee,. which seems to have been intended as the gravamen, could not, of itself, and alone, bar the action. The mere caption and imprisonment of Lee, did not satisfy or release the judgment, and could not, therefore, have operated either as an actual or legal exoneration of himself, or of his co-obligor. Nothing but actual satisfaction, or a liberation of Lee by the plaintiffs, or a release to him in fact, or in law, could have exonerated the defendant from any joint liability which pre-existed. Cro. El. 573; 5 Co. 86; Gow on Part. 257, Mar. pa. If Lee had escaped, or had been discharged, the defendant’s liability would not have been thereby destroyed, or impaired. Gro. El. 479, 555, 573; 5 Co. supra.”
Trustees of the Poor v. Pratt, 10 Md. 5, is in accord with the foregoing authorities.
“It is contended, in the first place, by the appellee’s counsel, that the arrest of the defendant in the judgment, under a ca. sa. issued thereon, prior to the marriage, either amounted, in law, to a satisfaction of the judgment, or waived or suspended the lien thereof, so as to allow the dower to attach upon the lands. The contrary principle has been adopted in this State, as well as by the Supreme Court of the United States, in the case of Tayloe v. Thomson, 5 Pet. 358. In that case the court says:
“ ‘The greatest effect, which the law gives’ to a commitment on a ca. sa., is a suspension of other remedies on the judgment during its continuance.’
“It is not said that the lien is suspended, but on the- contrary, the court expressly say that the plaintiff’s ‘remedies are cumulative and successive, which he may pursue until he reaches that point at which the law declares his debt satisfied. A ca. sa. executed does not extinguish it. If the defendant escape or is discharged by operation of law, the judgment retains its lien and may be enforced on his property;’ again, ‘it. retains its lien until the plaintiff has done or consented to some act which amounts in law to payment.’ * * *
“We are therefore of the opinion, that the proceedings upon the ca. sa. neither suspended the lien of the judgment so as to allow the dower to attach, nor does it afford a legal presumption of the satisfaction of the judgment.”
Herman on Executions, pp. 573, 574, disposes of the point in this wise:
“It was formerly held that if a person taken on a ca. sa. died in execution, the plaintiff had no further remedy; because he determined the choice of this kind of execution, which, affecting a man’s liberty, is esteemed the highest and most rigid in law. But if he die while so charged, or escape, be rescued or be discharged under any insolvent law discharging his person, new execution may be issued against his body if he escape or be rescued, or against his property if he die or be discharged, in the same manner as if he had never been charged in execution. The body is merely regarded as a pledge for the debt; it is taken not in satisfaction, but ad satisfaciendum. The presumption is that the debtor is solvent, but is coerced of his liberty until he makes payment. His imprisonment is not a punishment, but merely a means of getting at that property which he is supposed to possess and fraudulently withholds.”
Other American cases in accord with the foregoing are: Leake v. Ferguson, 2 Grat. (Va.) 419; Atwell v. Towles, 1 Munf. (Va.) 175; Tappan v. Evans, 11 N. H. 311; Prentiss v. Hinton, 6 Blackf. (Ind.) 35; Sheldon v. Kibbe, 3 Conn. 214; Pettus v. Smith, 4 Rich. Eq. (S. C.) 197; Murray v. Shearer, 7 Cush. (Mass.) 333; Strode v. Broadwell, 36 Ill. 419; 3 Freeman on Executions (3d Ed.), § 462.
The following cases will be found directly in point, because the debtor in each of them was discharged by an insolvent act the same as in the present case: Nadin v. Battie & Wardle, supra; Sharpe v. Speckenagle, supra; Bannister v. Miller, supra; Tayloe v. Thomson, supra; Miller v. Miller, 25 Me. 110; Payne v. Dudley (1793), 1 Wash. (Va.) 196, 198; Hamilton v. Bredeman, 12 Rich. Law (S. C.), 464; Strode v. Broadwell, supra; Douglas v. Wallace, 11 Ohio, 42.
The last case cited is illustrative of the holding in each. The court said, in part:
“Two questions seem to be presented to the court for consideration in this case:
“First: As to the effect of an arrest on ca. sa., where the arrest is discharged by the surrender of property; and,
“Second: Whether, in a case like the present, a court of chancery can furnish relief.
“As to the first question. We are aware that, by the principles of the common law, if a judgment debtor is arrested on a ca. sa., such arrest will be considered equivalent to a satisfaction of a judgment. In fact, it is said to be the highest satisfaction known to the law. But there are, and must necessarily be, exceptions to this rule. If the creditor is not permitted to retain his debtor in custody, it would hardly do to say, that, by the arrest, his debt was discharged. As if, for instance, a judgment debtor, arrested, is discharged under the insolvent laws, there can be no pretense that the judgment is satisfied. If, at any subsequent period, the debtor shall accumulate property, the judgment can be enforced against that property, although it cannot be enforced by a second arrest of the body.”
Counsel has cited the following English cases as sustaining the contention of the defendant: Burnaby’s Case (K. B.), 1 Strange, 653; Foster v. Jackson, Hobart, 124; Vigers v. Aldrich (1769), 4 Bur. (K. B.) 2482; Jaques v. Withy (1787), 1 Term Rep. 557; Clarke v. Clement & English (1796), 6 Term Rep. 525; Tanner v. Hague (1797), 7 Term Rep. 420; Bassett v. Salter (1677), 2 Mod. 136; Blackburn v. Stupart (1802), 2 East, 243.
Foster v. Jackson is an authority for defendant’s contention, but the rule announced in that case was soon afterwards reversed by act of parliament. (21 Jac. 1, chap. 24.)
In Burnaby’s Case the subsequent relief sought was denied because the debtor was at the moment in custody, thereby following the rule that while the debtor is in custody no other process to enforce the judgment will issue.
The question litigated in Bassett v. Salter was the propriety of. the remedy in case of an escape. In the remaining cases relief was denied because plaintiff had consented to the release of the debtor.
The American cases cited by defendant are: Yates v. VanRensselaer (1810), 5 Johns. (N. Y.) 364; Cooper v. Bigalow, 1 Cow. (N. Y.) 56; Lathrop v. Briggs, 8 Cow. (N. Y.) 171; Ransom v. Keyes, 9 Cow. (N. Y.) 128; Ammidon v. Smith, 1 Wheat. (U. S.) 447; Stillwell v. VanEpps, 1 Paige Ch. (N. Y.) 615; Strawsine v. Salsbury, 75 Mich. 542.
In the cases of Cooper v. Bigalow and Stillwell v. VanEpps, the defendants were in custody and relief was denied for this reason. In Ammidon v. Smith, suit was brought on the bond which defendant gave to be admitted to the prison yard. Subsequently he was discharged under the insolvent laws and it was held no recovery could be had against the sureties on the bond because the condition of the bond was not violated. In the remaining cases the court found that the plaintiffs had consented to the release of the de fendants, which, under the rule, satisfied the judgment. Relief was denied upon this ground.
Strawsine v. Salsbury is a Michigan case. In that case it was stated that:
“It is well settled at the common law that the detaining of the body in execution is a satisfaction of the debt, and you cannot afterwards take the goods.” Citing Cooper v. Bigalow, 1 Cow. (N. Y.) 56; Lathrop v. Briggs, 8 Cow. (N. Y.) 171; Ransom v. Keyes, 9 Cow, (N. Y.) 128.
This holding is similar to many other holdings in cases where plaintiffs have consented to a release of the debtor. An analysis of the case will show that the conclusion therein reached was because the defendant was released by the implied consent of the plaintiff. This is shown by the following reasons:
(а) It was made to appear by defendant that the debtor was released because the plaintiff refused to pay the statutory, fees for his keeping. Plaintiff denied this and the issue, which was passed upon by the jury, was whether plaintiff was in such default. The jury found this fact in favor of defendant. This finding was equivalent to a finding that plaintiff had impliedly consented to the debtor’s release by his refusal to pay the statutory fee. In re Lauer’s Estate, 184 Mich. 503.
(б) The authorities cited by Mr. Justice Long are not in point unless this theory of the opinion is accepted.
(c) The jury were charged in substance that, if they found that the plaintiff refused to pay the jail fees, the sheriff was justified in releasing him. And they were further charged that if the sheriff released the defendant without the knowledge or consent .of the plaintiff, the plaintiff would be entitled to recover.
The attitude of the trial court is plainly indicated by this instruction. Had the question of veracity be tween the sheriff and plaintiff been decided in favor of the plaintiff, a judgment for him would have followed notwithstanding the fact that the defendant’s body had been in execution on the judgment. These considerations are persuasive that by the language used in the opinion it was not intended to hold that the mere imprisonment of the debtor would satisfy the judgment. If it were so intended the language is obiter dictum and would not be controlling. This case must be classed among those in which the plaintiff consented to the discharge of the debtor.
After an exhaustive examination- of the authorities we are not persuaded that the taking of a debtor’s body in execution is a satisfaction of the judgment. It may have been true in the early history of the rule because then there was no way in which the debtor could be released except by payment of the debt or by the consent of the plaintiff, but, since debtors have been released under the insolvent laws against the consent of the plaintiff, there is no basis for holding that the debt is satisfied if the debtor has been in execution and released by operation of law. The overwhelming weight of authority is that the judgment is not satisfied if the debtor is released by the insolvent laws. Our opinion, therefore, is that when the husband of defendant was released under the provisions of the poor debtors’ act the judgment was not satisfied. That while the debtor could not have been imprisoned again on the same judgment, all the remedies against his property were open to plaintiff.
The question as to the effect of our statutes on the controversy is much discussed by counsel. The chancellor was impressed that the statutes should control the question and accordingly he placed his decision upon that ground. An examination of the statutes which have been called to our attention discloses that most of the provisions are merely, declaratory of the common law. In re Lauer’s Estate, 184 Mich. 497. Special stress, however, is laid upon section 12843, 3 Comp. Laws 1915:
“When the body of a party shall have been taken on an execution issued for that purpose, no other execution can be issued against him or his property, except in cases especially provided for by law.”
This section in no way changes the common law, but is declaratory of it. The rule of the common law is that when the plaintiff has the body of his debtor in execution, his right to pursue other remedies against him are suspended. LaBranch v. Herbst, 192 Mich. 129; Grosslight v. Wayne Circuit Judge, 127 Mich. 414; 16 Am. & Eng. Enc. Law (2d Ed.), p. 49.
The words of the statute “except in cases especially provided for by law” mean by statute or common law. Fuller v. Bowker, 11 Mich. 204.
The statute means the same as the common law does and should receive the same construction. The opinion of Mr. Justice Montgomery in Grosslight v. Wayne Circuit Judge, supra, indicates this is the view heretofore entertained by this court. In the course of that opinion it was said:
“In general, the taking a party in, execution is deemed as satisfaction of the judgment, so that no other writ can be sued) out by the plaintiff upon the judgment while the defendant remains in custody. Burrill, N. Y. Prac. p. 314.”
Reference is also made to the following section:
“The debtor, after being so discharged, shall be forever exempted from arrest or imprisonment, for the same debt, unless he shall be convicted of having sworn falsely upon his examination before the officer, or in taking the oath before prescribed.” 3 Comp. Laws 1915, § 13628.
This statute is also declaratory of the common law. Under the common law when the debtor was once in execution he could not be again imprisoned on the same judgment unless he had escaped or was rescued. This section undertakes to and does fix the status of the debtor with reference to his indebtedness after receiving his discharge under the poor debtors’ act. It provides that after being discharged he may not again be imprisoned for the same debt. It makes no reference to his goods and chattels and-creates no exemption in their behalf. Prior to the legislative session of 1877 this section read as follows:
“The debtor, after being so discharged, shall be forever exempted from arrest or imprisonment for the same debt, and shall be discharged from such debt, unless he shall be convicted of having sworn falsely upon his examination before the officer, or in taking the oath before prescribed.” 2 Comp. Laws 1871, § 7333.
At that session the section was amended and the words “and shall be discharged from such debt” were eliminated, leaving the section to stand in its present form. Act No. 99 of the Public Acts of 1877. Had it been the intention of the legislature to protect the debtor’s property from execution after being discharged, it is hardly conceivable that it would have eliminated those words from the statute. The fact that it did so indicates clearly a contrary intention. We do not think our statutes in their present form create any exemption in favor of the goods and chattels of a discharged debtor under the poor debtors’ act.
This view of the main question makes it unnecessary to pass upon some of the other questions raised. The question whether the books and papers belonging to the deceased were properly identified and proven was not passed upon by the chancellor because he was of the opinion that the bill should be dismissed upon the main question. The decree dismissing the bill must be reversed and the records and files must be remitted to the trial court for such further proofs as the parties may decide to introduce, subject, however, to the rules of law and practice of the court. The plaintiff will recover costs of both courts.
Fellows, Stone, Clarke, and Sharpe, JJ., concurred with Bird, J. Steere, C. J., and Moore, J., concurred in the result.
The late Justice Brooke took no part in this decision. | [
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] |
Clark, J.
Michael J. McCarthy died of lobar- pneumonia on July 10, 1915. He was then, and for many years had been, a member of the fire department of the city of Detroit.
Respecting pensions, section 442 of the city charter provided:
“In case any person in the employ of the fire commission of said city of Detroit shall be killed while in the discharge of his duty or shall receive injuries which result in his death within one year thereafter, the widow first, or children, if there is no widow,, and if such person shall leave no widow nor children, then mother of such person, if dependent upon him for support, shall by vote of the fire commission be paid a pension. The widow or dependent mother shall receive the sum of three hundred dollars annually in equal monthly installments of twenty-five dollars each during the term of her natural life or until she remarries, in which case all payments of money under this act to such widow or dependent mother shall cease.”
On August 6, 1915, plaintiff, the widow, wrote a letter to the secretary of the fire commission giving the fact of the death and of the employment of her husband and stated:
“There is no question in my mind but that his death was directly caused by injuries received while acting in the discharge of his duties as fireman at the Leonard Storage House fire, on November 6th, 1913. He never fully recovered from the effects of these injuries. Under the circumstances it would seem that I, his widow, should be entitled to the usual pension.”
On October 8, 1915, plaintiff was advised by the commission by letter that her claim had been considered on October 4th, and denied. Her attention was called to the quoted provision of the charter and she was told that the commission could not grant a pension, the death having occurred more than a year after the alleged injuries. Plaintiff then retained an attorney who on November 23, 1915, filed with the commission a formal sworn petition for pension which petition was later supplemented by another sworn petition filed with the commission on April 8, 1916. We quote from the petition:
“Petitioner further shows unto your honorable commission that said Michael J. McCarthy on or about November 5th, 1913, while engaged in the performance of his duties at what is known as the Leonard Warehouse fire, became sick, sore, lame and disordered, and remained for a great space of time, for upwards of a period of six weeks immediately thereafter, and subsequently returned to his work in the department; that said deceased’s physical condition was greatly impaired as a result thereof and his lungs were in a weakened condition so that he was unable to withstand an attack of lagrippe which caused the death of said deceased. Petitioner further shows that said Michael J. McCarthy while in the discharge of his duties on or about the 5th day of July, 1915, contracted a severe cold which later developed into an attack of lagrippe, and which resulted in his death as aforesaid on or about the 10th day of July, 1915.”
And from the supplemental petition:
“Your petitioner begs leave to refer to said petition in its entirety, and in addition to the matters set forth in said petition, she desires to present to this honorable body the following matters and things and injuries which materially affected her husband’s health, and which sickness and injury subsequently caused his death, as above set forth.
“That on or about the 3d day of May, 1915, while engaged at a fire at Nos. 728 and 732 Chene street, in the city of Detroit, the said Michael J. McCarthy was engaged in said fire for the period of over one and one-half hours, directing his men, and at such time and place aforesaid the said Michael J. McCarthy received injuries to his back, in the nature of a severe wrench, which caused him to spit blood for a long space of time immediately thereafter, and almost continuously up until the time of his death.
“That on or about May 19th, the said Michael J. McCarthy, in his injured condition, continued at his -work at an automobile fire on Jefferson avenue between Chene street and Campau avenue, for the space of one quarter of an hour, and that later, on the 31st day of May, he worked at a fire at 647 Larned street, for one half hour, and received injuries at that fire which continued and aggravated the old injury and caused him a great deal of pain and suffering in the spitting of blood continuously.
“That your petitioner further shows that the injuries received in these several fires, immediately prior to his death, really caused his death, and caused his demise, and that he came to his death as a result of these several injuries, and while engaged in the work of the fire department of the city of Detroit, as one of its members.”
It is now said in plaintiff’s brief here that the supplemental petition “sets up in detail the true claims as to the injury and death.” The petition and supplemental petition were heard by the commission on April 20, 1916, at which hearing plaintiff was represented by counsel. The testimony of a number of witnesses was taken. Pension was denied, and plaintiff’s coun sel so advised by letter of the commission of May 31, 1916, as follows:
“At a meeting of the fire commission, held on the 29th day of May, the supplemental petition filed under date April 8th, 1916, together with the original petition which was filed on November 23d, 1915, as well as the testimony taken at a meeting of the commission held on the 20th day of April, 1916, for a widow’s pension for Katherine McCarthy, was acted upon by the fire commission and I am instructed to advise you claim for pension was denied.”
The stenographic notes and transcripts of the testimony taken at this hearing are now lost.
Nearly three years later, in March, 1919, plaintiff filed with the pension committee (defendants constituting the same under the present charter) of the fire commission a petition for. rehearing. Such petition repeats substantially the averments of the former supplemental petition. The only ground or reason for rehearing suggested is that the finding was erroneous. After consideration and without hearing the petition for rehearing was denied by the defendants as said pension committee. Thereupon in the Wayne circuit plaintiff sought mandamus to compel defendants to place her name upon the pension roll of the city, to vote her a pension in the prescribed sum commencing July 10, 1915, and to draw vouchers accordingly., To the order to show cause defendants answered and denied that plaintiff was entitled to relief and denied the jurisdiction of the court. Replication was filed. The pleadings brought in the proceedings before the fire commission and the pension committee. The court ordered the framing of this issue of fact:
“Did Michael McCarthy die as a result of lobar pneumonia which developed as the result of the injury to his lungs sustained in the month of May, 1915?”
(As to issues of fact on mandamus see Blickle v. Kent Probate Judge, 211 Mich. 216.)
Testimony of plaintiff, physicians and other witnesses was taken. There was judgment for plaintiff which defendants review here on certiorari.
The question for determination at the hearing by the fire commission on April 20, 1916, was: While in the discharge of his duties did McCarthy receive injuries which resulted in his death within one year thereafter? This was a question of fact for the judgment and discretion of the commission whose function was not ministerial but quasi-judicial. The charter provided no appeal from or review of its decision. At the hearing plaintiff was represented by counsel. Five witnesses testified in her behalf. No claim is made that the hearing was not full and fair. It is admitted that her supplemental petition stated her claim as fully as she now states, it. But counsel for plaintiff asserts that the action of the commission was arbitrary, capricious, unreasonable and contrary to the established facts in that as to the date of the claimed injuries it held plaintiff to the claimed mistaken and misguided statements of her letter of August 6, 1915, above quoted. But this is refuted by the record. The finding of the commission was based upon the petition, supplemental petition and the testimony taken. See letter of commission of May 31st, above quoted. The commission might properly have noted and doubtless did note the conflicting statements of plaintiff shown by her petitions and letter. The testimony then taken is not before us. But fraud or misconduct is not to be presumed. And it is significant that in the trial below, after the evidence was in, the question was still debatable, still an' issue of fact.
In passing upon the issue of fact before the commission at its hearing of April 20, 1916, its action is not shown to have been fraudulent, arbitrary or cap ricious. In the absence of such showing the action of the comjnission must be deemed final and we have no right to interfere by mandamus, no right to substitute our judgment or discretion for that of the commission. And in the absence of such showing it was not the duty of the defendants, pension committee, to grant a rehearing. 21 L. R. A. (N. S.) 583; State, ex rel. Lynch, v. Board of Trustees, 117 La. 1071 (42 South. 506, 8 Ann. Cas. 945); United States v. Scott, 25 Fed. 472; State v. Verner, 30 S. C. 277; Manufacturers’ & Merchants' Inspection Bureau v. Buech (Wis.), 181 N. W. 125; 18 C. J. pp. 1134, 1135.
The judgment is reversed with costs to defendants.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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Bird, J.
Nelson B. Shaw was an employee of defendant in its automobile factory. He died very suddenly while in the service, and it is the claim of plaintiffs, who are his wife and children, that his death was due to an accident which he met' while engaged in defendant’s service. A death award was denied by the arbitration committee, but this conclusion was reversed by the industrial accident board and a death award granted. The defendant insists that there is no evidence to support the award. The only question involved is whether there was any proof of an accident.
The hearing disclosed that on February 28, 1920, Mr. Shaw was engaged with several other employees in loading Packard trucks onto a gondola ear. When the work was about finished Mr. Shaw’s superior ordered him to get the keys and place them with the trucks. Soon after this Shaw was seen up on the car carrying out this order. About 10 minutes later Mr. Shaw was seen lying in a half reclining position leaning on one arm at the foot of the ladder leading up to the top of the car. His superior assisted him to his feet and as he did so Mr. Shaw exclaimed: “Gee! I have hurt me,” or “Gee! It hurt me.” He rested for a short time and then walked to his home. A physician, Dr. Gibson, was called and found him in considerable pain and in a condition of shock. He administered to him, and a short time thereafter Mr. Shaw died. There was a variance in the opinions of the physicians as to the cause of death. The death certificate stated the cause of death to be acute indigestion.
It appeared to be the view of the industrial accident board that Shaw either jumped or fell from the car and the shock occasioned thereby caused acute dilatation of the heart. In support of this view the board had before them the following facts, which appear in the testimony:
(a) That the deceased was a man, 51 years of age, in good health, with no known tendency to heart troubles. That he had been working in the usual way on the day in question.
(b) That he was ordered by his superior to place the keys in the trucks which they had just finished loading. He obeyed this order and went up on to the car.
(c) A short time afterwards he was found on the ground in a half reclining position resting on one arm near the foot of the ladder running up on the side of the car. When he was assisted to his feet he exclaimed: “Gee! I have hurt me,” or “Gee! it hurt me.” Also complained of pain in his chest.
(d) He walked to his home and was soon visited by a doctor, who testified he found him suffering much pain and in a condition of shock, and gave it as bis opinion that the shock proceeded from an injury.
(e) Two physicians, Drs. Gibson and DeWitt, gave it as their opinion that he died from acute dilatation of the heart and that this could be, and was usually, produced by a fall or over-exertion, or by jumping.
With testimony of these specific facts, together with the general situation, before it, we are not of the opinion that we should say, as a matter of law, that there is no testimony to support the award. If it be known that a person is on an elevated object and soon after he-is found lying on the ground at the foot of the ladder which leads to the elevation, in a half reclining position, complaining of being hurt, it would not be an unnatural inference that in his attempt to return he had fallen to the ground. This was the conclusion reached in Meyers v. Railroad Co., 199 Mich. 184. In that case the fireman had on his working clothes and was working about his engine while in the round house. He had appeared to those who saw him last as being well and all right. Some time later he was found dead at the side of his engine. The position of his body indicated that he might have fallen from his engine. From these facts an inference was drawn that while working about his engine he fell and the fall produced concussion of the brain. Neither in that case nor in the present one was it known positively what caused the injury, but the facts were such as to support an inference that they had fallen. We are not drawing conclusions from the facts. We are determining whether the testimony is open to the conclusions which the board drew. The board had the testimony before it. We think the testimony was susceptible of the inferences which they drew from it. . This is final and we have no right to interfere with it.
The award is affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Sharpe, J.
The plaintiffs, in 1916, purchased a parcel of land in the village of Birmingham, described in their deed as follows:
“The east one-half and the west one-half of a parcel of land situate in the southwest ¼ of the southeast ¼ of the northeast ¼ of section 36 town 2 north, range 10 east, beginning at an iron stake on the south line of Landon street eighty-four (84) feet west from an iron stake at the northern apex of lot sixteen (16) Grove plat, thence westerly on south line of Landon street eighty feet (80) to an iron stake, thence south one hundred four feet and seven inches (104 ft. 7 in.) to án iron stake which is one hundred six feet (106 ft.) north of north line of Lincoln avenue, thence east parallel with Lincoln avenue, eighty (80) feet to an iron stake, thence north to Landon street at the point of beginning.”
On. October 28, 1916, plaintiff agreed to sell the easterly 40 feet of their premises to Abner T. Klees and his wife for the sum of $3!,400, and to build a house for Klees thereon. They together went to Thomas Cobb, the cashier of the First State Savings Bank of Birmingham, to prepare the contract therefor. By inadvertence, he included therein the entire premises. This was not -noticed by any of the parties at the time the contract was executed and delivered. The house was constructed according to the agreement on the easterly 40 feet, and the vendees took possession. On November 3,1917, Klees and his wife assigned their contract interest to the defendant Walter F. Johnson, the plaintiffs consenting thereto. Two real estate agents, James Campbell and James Valentine, participated in this sale. Mr. Valentine testified that he accompanied Johnson when he ex amined the premises, and that he then told him Klees . had only the 40 feet on which the house was located. Campbell testified he told Johnson that “the property represented in the sale was the east forty feet of a certain eighty feet on Landon street.” Klees testified he told Johnson that only 40 feet was included in his contract from plaintiffs. On December 5, 1917, Johnson and his wife executed a land contract to convey the entire 80 feet to the defendants Gordon Rogerson and his wife, who took possession thereof. On August 21, 1918, plaintiffs filed their bill of complaint herein, setting up the mistake in the description in the contract to Klees, alleging that both the Johnsons and the Rogersons. had knowledge thereof, and praying that the contract executed by them to Klees and assigned to the Johnsons and that executed by the Johnsons to¡ the Rogersons be reformed to include but the easterly 40 feet of said premises. The Johnsons, answering, denied such knowledge, as did also the defendants Rogerson.
During the pendency of the hearing before the trial court, the plaintiffs were permitted to amend their bill by adding thereto an additional prayer for relief, praying in substance that, in the event the court found that the Rogersons were innocent purchasers in good faith of the entire 80 feet, the value of the west 40 feet should be determined and a decree made giving plaintiffs a lien therefor on the payments to become due from the Rogersons to the Johnsons under their land contract.
The trial court found that but the easterly 40 feet was intended to be included in the Klees contract, and that Johnson was so informed when he took the assignment thereof. He further found that the Rogersons were innocent purchasers in good faith and that their rights under the Johnson contract to them could not be interfered with. He permitted proof to be offered of the value of the .westerly 40 feet and found such value, at the time the contract to Klees was made, to be $650. To this he added interest, making in all $713, and decreed that such sum should be paid by Johnson to plaintiffs on the execution of a deed to him of the entire premises. It was further decreed that plaintiffs should have a lien on the entire premises, subordinate, however, to the rights of the Rogersons under their contract, and also on the moneys due from the Rogersoiis to the Johnsons thereunder, and that such lien might be enforced in the usual way. Both plaintiffs and the Rogersons were awarded costs against the Johnsons. From this decree the Johnsons appeal.
It is insisted that plaintiffs have an adequate remedy at law; that, as the Rogersons' were bona fide purchasers for value, the contract from Johnson to them could not be reformed and plaintiffs’ relief, if any, must be by suit at law against Johnson. At the time the bill was filed, plaintiffs believed themselves entitled to a reformation of both their contract to Klees and that from the Johnsons to the Rogersons. When it appeared that the Rogersons were bona fide purchasers, the prayer of the bill was amended as above stated. The court, having acquired jurisdiction of the subject-matter and the parties, had the power to fully dispose of the matters in controversy. A question somewhat analogous was presented in Marussa v. Temerowski, 204 Mich. 271, where, on a bill filed for specific performance of a land contract, it appearing that performance could not be decreed, owing to the premises having been conveyed by the vendor to an innocent purchaser, the trial court entered a decree for the amount of the damages sustained by the vendee. Such decree was affirmed by this court. In the opinion it is said:
“We do not understand it to be claimed that such a decree was not proper under the findings of the court. Nor is it pointed out, and we do not discover, that it is incorrect in amount. The court, having acquired jurisdiction of the case and the parties, should dispose of the controversy. The decree was a most equitable one. Unless there are insuperable legal objections it should be affirmed.”
See, also, 21 C. J. p. 134, and the Michigan cases there cited.
It is claimed that the proofs show plaintiffs did not act promptly after discovering the mistake and for that reason are not entitled to relief in equity. The trial court found that Clark, Klees and Johnson knew of the mistake in the description when the assignment from Klees to Johnson was made. For that reason he concluded that plaintiffs should recover the value of the westerly 40 feet at the time the Klees contract was made rather than its increased value at the time the Johnsons sold to the Rogersons. The correction should have been asked for when the mistake was first discovered, but Clark had no reason to assume or even apprehend that Johnson would commit a fraud by selling the entire 80 feet when he knew that in fact Klees was entitled to but 40 feet. In view of the fraudulent conduct of Johnson, we do not think he can be heard to urge the delay of the plaintiffs as a defense.
Counsel contend that the proof admitted to show that but 40 feet was intended to be conveyed to Klees violates the rule against varying a written contract by parol. It is elementary that when, because of a mistake in fact, an instrument does not express the agreed intention of the parties, equity will correct such mistake unless the rights of third parties intervene. As applied to the allegations in plaintiffs’ bill of complaint, the rule is thus stated in 34 Cyc. p. 910:
“Wherever an instrument is drawn with the intention of carrying into execution an agreement previously made, but which by mistake of the draftsman or scrivener, either as to law or fact, does not fulfil the intention, but violates it, there is ground to correct the mistake by reforming the instrument.”
Whether or not such a mistake was made is a subject of inquiry open to parol testimony. Labranche v. Perron, 209 Mich. 239, and cases therein cited.
A careful reading of the entire record satisfies us that the decree made was equitable and fully justified by the proofs submitted. It is affirmed, with costs to plaintiffs against the defendants Johnson.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred. | [
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Wiest, J.
Claiming that they were induced by the false and fraudulent representations of defendants relative to the value and the character and fertility of the soil of a certain farm owned by defendants to purchase the same on contract, and to deed defendants their equity in a house and lot in the city of Detroit in part payment, plaintiffs, after living on the farm about a year, and after default in payment under the contract and after having been served with notice to quit, left the farm and brought this suit to recover damages for such alleged fraud.
Upon the trial plaintiff John Morain was permitted to testify that he was earning $5 a day in a factory when he purchased the farm and gave up such job, and the other plaintiff gave similar testimony. This was objected to and after some hesitation and with evident doubt on the part of the trial judge, was admitted. Counsel for plaintiffs urged the admissibility of such testimony upon the question of damages, stating:
“If the court please, we likewise allege that through the false representations and inducements, they induced this man to quit his job that he had,, which was continual, and that upon their representations which were false and on which he relied he did quit his work and lost his position which was, as I have said, perpetual. We claim there is a measure of damages in connection with the other — in addition to the other.”
The admission of this testimony was error but rendered harmless by the following instruction to the jury:
“You are not to take into consideration, gentlemen of the jury, the evidence that has been offered to you here with reference to salary that the plaintiff claims that he lost by reason of the transfer, and I charge you, specifically, gentlemen, that that is not an element of damages between the parties, if you should come to that stage in your deliberations.”
Plaintiffs claimed that defendants falsely represented that they had lived on the farm for 15 years, and upon cross-examination both defendants were asked if they had not' so stated to other persons than plaintiffs. This was objected to but was permitted, and upon rebuttal, and against objection, a witness was permitted to testify that Mrs. Tesch had so told her. Plaintiffs were suing upon false representations made to them by means of which they were deceived to their damage, and they claimed that they relied upon defendants’ representations as to the character of the land and the fertility of the soil because of defendants’ long time experience with the farm. It was proper to question both defendants as to whether they had made such a statement to others and to follow it up by evidence that they had; not as substantive proof in support of plaintiffs’ claim that such a representation was made to them but for its bearing upon the question of fraudulent purpose claimed to have been formed by defendants in their endeavors to dispose of the farm. Cook v. Perry, 43 Mich. 623; J. B. Millet Co. v. Andrews, 175 Mich. 350.
Defendants requested the court to instruct the jury that there had been no fraud shown. Under the evidence questions of fact were involved and the court properly refused the instruction asked for. The inspection of the premises by plaintiffs did not as a matter of law bar them from relying upon representations made by defendants. Jackson v. Armstrong, 50 Mich. 65. The evidence presented issues of fact for the jury. See Merrill v. Newton, 109 Mich. 249.
In the deal plaintiffs received farm tools and live stock of considerable value. In the charge to the jury upon the measure of damages the court said:
“I charge you that the proper measure of damages would be the difference between the actual value of the land^at the time of the purchase, and what its value would have been had it been of the quality and condition represented.”
This left out of consideration the value of personal property received by plaintiffs, and was error. Plaintiffs contend that defendants not having requested the court to cover the subject in the charge should not now be permitted to raise the question. The statute, 3 Comp. Laws 1915, § 12632, permits error to be assigned upon the charge of the court, and defendants have not lost the right to be heard upon a matter so necessarily involved in the damages.
Errors are assigned upon excerpts from the charge. We have examined the whole charge and feel that there is no occasion to enter upon an extended discussion thereof.
For the error pointed out the judgment is reversed and a new trial granted, with costs to defendants.
Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Per Curiam.
Following a jury trial, defendant Raymond L. Wyngaard was convicted of being an accessory after the fact to a prison escape, MCL 750.505; MSA 28.773. He was subsequently convicted of being an habitual offender — fourth or subsequent offense, MCL 769.12; MSA 28.1084. He was sentenced to from forty to sixty months in prison on the accessory conviction, which sentence was vacated upon his sentence to from twenty to forty years in prison on the habitual offender conviction.
Defendant David Alan Crousore was convicted by a jury of aiding and abetting the prison escape of James Alexander, MCL 750.193; MSA 28.390 and MCL 767.39; MSA 28.979. He was sentenced to from forty to sixty months in prison. Both defendants appealed as of right and their cases were consolidated as the convictions at issue arose out of the same escape.
Defendant Wyngaard raises one issue on appeal: Does the Michigan harboring and concealing statute preempt the common-law felony of accessory after the fact to escape from prison?
Defendant Crousore raises five issues on appeal: (1) Was there sufficient evidence to convict defendant on the charge of aiding and abetting a prison escape? (2) Did the trial court commit error in instructing the jury on the elements of aiding and abetting a prison escape? (3) Did the trial court abuse its discretion in failing to suppress a gun seized from the house in which defendant lived with his girlfriend? (4) Did the trial court abuse its discretion in failing to grant defendant’s new counsel’s request for an adjournment? and (5) Did the trial court commit error by deciding not to disclose to the jury that a witness was testifying under a grant of immunity?
The events out of which each of the defendants’ convictions arose are as follows. On January 2, 1984, at approximately 9:30 a.m., James Alexander and James Chipman escaped from the Huron Valley Prison. A woman in a light blue Camaro drove Alexander and Chipman from the prison to a motel room at the Wolverine Inn in Ann Arbor. Approximately ten minutes after their arrival, defendant Crousore entered the motel room. According to Alexander, Crousore told them that he was riding "shotgun” in the event of trouble and that his "old lady” had rented the room for them the previous day. He told Chipman that he was glad to see him out.
The next day, at approximately 10:00 A.M., defendant Wyngaard picked up Alexander and Chip-man from the Wolverine Inn and took them to a bank where he withdrew $300 and gave it to Chipman. Wyngaard then took the two men to the Bella Motel in Center Line. According to Alexander, Wyngaard visited the men at the motel approximately four more times. During these visits Wyngaard brought the men a suitcase full of clothing, a .22 caliber pistol, more money and false identification. The men eventually left the motel room through a window to escape detection by the police.
Defendant Wyngaard testified that he knew of Chipman from his own stay in prison, from which he was released in June, 1983. He had never met Alexander until the day he picked the two men up at the Wolverine Motel. Wyngaard went to the motel after receiving a call for assistance from a man who identified himself as a friend of a man Wyngaard knew. Wyngaard borrowed his sister’s car and went to the Wolverine Inn. Once there, the men forced defendant at gunpoint to take them to Warren. Defendant managed to talk them into taking $300 and then he took them to the Bella Motel. The men kept defendant for approximately six more hours and then let him go after eliciting a promise that he would not call the police.
Defendant Crousore’s defense theory was that Alexander had help from prison employees inside the prison and implicated Crousore to protect those employees. As noted, Crousore was found guilty of aiding and abetting the prison escape of Alexander. The jury could not reach a unanimous verdict on the charge of aiding and abetting the prison escape of Chipman.
Since the claims of each defendant are different they will be considered separately.
WYNGAARD
Wyngaard contends on appeal that the harboring and concealing statute, MCL 750.199; MSA 28.396, preempts the common-law offense of accessory after the fact to prison escape, MCL 750.505; MSA 28.773, and therefore the trial court erred in denying his attempts to quash the information charging him with being an accessory after the fact. We disagree.
It is well-established that the common law may be changed and modified by statute and that in cases of conflict the statute prevails. People v Grand Trunk Western R Co, 3 Mich App 242, 248; 142 NW2d 54 (1966). In the instant case, the trial court found that defendant’s actions went beyond what was prohibited in the harboring and conceal ing statute. We agree and find, therefore, that there is no conflict between the two offenses.
The statute prohibiting harboring and concealing provides:
Any person who knowingly or wilfully conceals or harbors for purpose of concealment, any person mentioned in this chapter, who has escaped or is escaping from lawful custody, shall be guilty of a misdemeanor. [MCL 750.199; MSA 28.396.]
Defendant was convicted of the common law crime of being an accessory after the fact to prison escape pursuant to MCL 750.505; MSA 28.773, which provides:
Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.
It is well-established that criminal statutes must be strictly construed. This rule is most often employed in determining what actions come within the scope of a statutory prohibition. People v Willie Johnson, 75 Mich App 221, 224-225; 255 NW2d 207 (1977), aff'd 406 Mich 320; 279 NW2d 534 (1979); People v Jones, 142 Mich App 819, 822; 371 NW2d 459 (1985). The rule of strict construction of criminal statutes reflects the idea that it is the responsibility of the Legislature to define criminal offenses. Willie Johnson, supra. The primary object of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Great Lakes Steel Division of National Steel Corp v Public Service Comm, 143 Mich App 761, 764; 373 NW2d 212 (1985), lv den 424 Mich 854 (1985). In interpreting a statute, the rule of ordinary usage and common sense must be applied. Jones, supra. Dictionary definitions are appropriate aids in interpreting a statute. Great Lakes Steel, supra.
Black’s Law Dictionary defines "accessory after the fact” as:
One who, having full knowledge that a crime has been committed, conceals it from the magistrate, and harbors, assists, or protects the person charged with, or convicted of, the crime. . . .
All persons who, after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may avoid or escape from arrest, trial, conviction, or punishment, are accessories. [Black’s Law Dictionary (4th ed, 1968), p 29.]
An accessory after the fact at common law is one who, with knowledge of another’s guilt, renders assistance to a felon in an effort to hinder the felon’s detection, arrest, trial or punishment. People v Lucas, 402 Mich 302, 304; 262 NW2d 662 (1978).
Black’s Law Dictionary defines "conceal” as:
To hide; secrete; withhold from the knowledge of others; to withdraw from observation; to withhold from utterance or declaration; to cover or keep from sight. [Id., p 360.]
"Harbor” is defined:
To afford lodging to, to shelter, or to give a refuge to. . . . To receive clandestinely and without lawful authority a person for the purpose of so concealing him that another having a right to the lawful custody of such person shall be deprived of the same.
It may be aptly used to describe the furnishing of shelter, lodging, or food clandestinely or with concealment, and under certain circumstances, may be equally applicable to those acts divested of any accompanying secrecy. [Id., p 847.]
We conclude that the Legislature did not intend the harboring and concealing statute to encompass all aspects of aiding an escape. Rather, the statute merely prohibits the providing of a refuge for or hiding the escapee. It does not go further and include a prohibition against something more to prevent the escapee’s detection or arrest, e.g., providing supplies, weapons, money or transportation, as was done by defendant Wyngaard herein, with knowledge that a crime has been committed. Punishment for these additional acts is provided for under the common-law felony of accessory after the fact.
Defendant’s reliance on United States v Eaglin, 571 F2d 1069 (CA 9, 1977), and United States v Kutas, 542 F2d 527 (CA 9, 1976), in support of his argument is misplaced. The defendants in those cases were charged with harboring and concealing an escaped federal prisoner, 18 USC 1072. That statute provides:
Whoever willfully harbors or conceals any prisoner after his escape from the custody of the Attorney General or from a Federal penal or correctional institution, shall be imprisoned not more than three years.
The federal statute imposes a much stiffer penalty for violation indicating an intent that it cover a broader range of acts. The federal penalty is much closer to the five-year penalty imposed in Michigan for being an accessory after the fact than to the ninety-day penalty for the harboring and concealing misdemeanor. Further, the Michigan statute stresses that it limits concealing and harboring to that done "for purposes of concealment.” Strict construction of the statute does not include providing assistance to the escaped felon, with knowledge that the crime was committed, to avoid detection and arrest. It merely includes hiding the person from the view of others. The federal statute without the limitation included in the state statute enables it to include a broader range of acts within the definition of harboring and concealing.
Accordingly, we conclude that defendant Wyngaard was properly charged and convicted as an accessory after the fact to prison escape.
CROUSORE
Defendant Crousore first contends that the evidence was insufficient to find him guilty of aiding and abetting a prison escape. We disagree.
When reviewing a case to determine if there was sufficient evidence to convict a defendant, this Court views the evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885 (1980).
Defendant was convicted of aiding and abetting the prison escape of James Alexander. The elements of aiding and abetting a prison escape are: (1) the principal was lawfully detained in a prison; (2) the principal escaped or attempted to escape from the prison; (3) the defendant must have performed acts or given encouragement which aided or assisted the prison escape or the attempted prison escape, either before or at the time of the escape; and (4) the defendant must have intended that the principal escape from prison at the time of giving the aid or encouragement. MCL 750.193; MSA 28.390 and MCL 767.39; MSA 28.979.
Testimony presented at trial indicates that, in the event of trouble, defendant was "riding shotgun” behind the car of the woman who picked up Alexander and Chipman at the prison. Further, defendant’s "old lady” had rented the room at the Wolverine Inn for Chipman and Alexander the day before the escape. In light of these facts, we find that there was sufficient evidence upon which to convict defendant of aiding and abetting Alexander’s prison escape.
Defendant Crousore next contends that the trial court improperly instructed the jury on the elements of the crime of aiding and abetting a prison escape. The trial court charged the jury as follows:
The defendant is charged in each of Counts Two and Three with aiding the escape of a prisoner. The defendant pleads not guilty to these charges.
To establish these charges the prosecution must prove each of the following elements beyond a reasonable doubt:
First, as to Count Two, that James M. Alexander was a prisoner committed to or detained in the Huron Valley Men’s Facility, and, second, that James M. Alexander was lawfully committed to or detained in that facility.
As to Count Three in the information, the first and second elements would be, first, that James E. Chipman was a prisoner committed to or detained in the Huron Valley Men’s Facility, and second, that James E. Chipman was lawfully committed to or detained in that facility.
Third, that the defendant intentionally aided or assisted those prisoners respectively, Chipman and Alexander, in their efforts to make an escape.
It does not matter whether the escape was made or even attempted but that the defendant must have intended to assist the escape of the prisoner.
And fourth, that the defendant must have intended the commission of the crime charged, that is the escape of James Alexander as to Count Two, and the escape of James Chipman as to Count Three at the time of giving the aid or encouragement.
It appears that the court’s charge is a combination of the aiding and abetting instruction, CJI 8:1:02 and 8:1:03, and the aiding the escape of a prisoner instruction, CJI 13:3:01, of which defendant was not charged. The applicable aiding and abetting instruction, which should have been given in its entirety, provides:
(1) It is charged in this case that [the accused] did not directly commit the crime but that he intentionally aided or assisted another in the commission of that crime by [state alleged acts].
(2) All persons who aid or assist in the commission of a crime are as liable as if they had directly committed the crime and may be convicted of the principal offense or as an aider and abettor.
(3) Before you may convict, you must be convinced of the following beyond a reasonable doubt:
(4) First, the crime charged must have been committed either by the defendant or some other person. [However, it is no defense that there has not been a conviction.]
(5) Second, the defendant must have performed acts or given encouragement which aided or as sisted the commission of that crime, either before or at the time of the commission of the crime.
(6) Third, the defendant must have intended the commission of the crime charged or have known that the other person intended its commission at the time of giving the aid or encouragement.
The crime committed was escape from prison, MCL 750.193(1); MSA 28.390(1), which provides:
A person imprisoned in a prison of this state who breaks prison and escapes, breaks prison though an escape is not actually made, escapes, leaves the prison without being discharged by due process of law, attempts to break prison, or attempts to escape from prison, is guilty of a felony, punishable by further imprisonment for not more than 5 years.
Defendant’s first assertion of error with respect to the trial court’s charge to the jury is that it failed to state that an escape from prison is an element of the offense of prison escape. Reading the instruction as a whole, as we are bound to do, People v Burgess, 153 Mich App 715; 396 NW2d 814 (1986), we find error on this basis even though we do not agree with defendant’s assertion that an actual escape from prison is a necessary element of the offense of prison escape. We find that an actual escape is not necessarily an element of the crime since pursuant to the language of the statute a person may be guilty of prison escape even though an escape is not actually made or if just an attempt to escape is made. In any event, the language of the instruction given does not provide for this element in any form. Rather, the charge states: "It does not matter whether an escape was made or even attemptedWe find this to be an erroneous statement of the law which had the effect of misleading the jury. Accordingly, we must reverse. People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967).
We also agree with defendant’s assertion that the trial court’s charge was erroneous since it failed to instruct that the aid or encouragement for aiding and abetting must have been given before or at the time of the commission of the offense and that the offense was completed once the prisoner left the prison without being lawfully discharged. See CJI 8:1:03(5), People v Charles Johnson, 62 Mich App 240; 233 NW2d 246 (1975), and People v Mendoza, 108 Mich App 733, 742; 310 NW2d 860 (1981), lv den 411 Mich 1084 (1981). In the instant case, in addition to the testimony that defendant Crousore was riding "shotgun” behind the car in which Chipman and Alexander were taken from the prison and that Crousore’s girlfriend had arranged for the motel room at the Wolverine Inn the day before the escape, there was some testimony that Crousore aided Chipman and Alexander after their escape once they were lodged at the Wolverine Inn. Without the above element of aiding and abetting it is possible that the jury convicted defendant of being an accessory after the fact. Therefore, we find the omission of this element to be prejudicial and must reverse on this basis as well. Liggett, supra.
We do not agree with defendant’s contentions that the charge failed to instruct that the prison escape must have been committed by someone and failed to instruct that defendant must have performed acts and encouragement which aided or assisted the commission of the crime. Reading the instruction as a whole, Burgess, supra, we find these elements to be present.
Defendant next contends that the trial court erroneously failed to suppress evidence of the gun seized from Crousore’s home, which he shared with his girlfriend, following his arrest there. We will consider this issue so that the same mistake is not made upon retrial. Alexander testified that he was given a .22 caliber pistol by defendant Wyngaard at the Bella Motel in Center Line. The pistol was seized at Crousore’s home following his arrest there. The trial court admitted evidence of the pistol pursuant to the search incident to valid arrest exception to the warrant requirement. Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969); see also People v Taylor, 67 Mich App 76; 240 NW2d 273 (1976). In Chimel, the United States Supreme Court limited the search incident to arrest:
There is no comparable justification, however, for routinely searching any other room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. [Chimel, supra, p 763.]
Here, defendant and his girlfriend were arrested while they were still in their pajamas. Defendant was allowed to change into street clothes, was handcuffed and escorted to the police car. His girlfriend was then taken to the bedroom and allowed to change. In the meantime, Detective Houghton conducted a search of the living room and kitchen for information concerning the whereabouts of Chipman. Houghton searched through a box of papers on the kitchen floor and discovered the .22 caliber pistol. Houghton testified that the gun was not in plain view. We find that, since defendant was in custody and his girlfriend had been escorted to another room while the search was conducted, sufficient justification for the search without a warrant did not exist. Hence, the trial court erred in admitting the evidence. This Court will not disturb a trial court’s ruling at a suppression hearing unless it is clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983); MCR 2.613. We conclude that the trial court’s decision not to suppress evidence of the pistol was clearly erroneous. Accordingly, we would reverse on this basis.
In view of our disposition of these issues we need not review defendant’s contention that the trial court abused its discretion in failing to grant defendant’s counsel’s request for an adjournment.
Defendant’s final contention, that the trial court erred in failing to disclose to the jury that witness Kevin Stephenson was testifying under immunity, will also be considered at this time so that the issue does not arise again.
During his opening statement, defense counsel stated defendant’s theory of the case was that the escape was effected with help inside the prison and that one prison guard in particular, Stephenson, had "masterminded” the escape. Defendant contended that he was being blamed in order to protect Stephenson and the other guards. After trial had commenced, the prosecution informed the court that Stephenson had decided to exercise his Fifth Amendment rights and would not testify unless granted immunity. Defendant objected to the prosecutor’s request that Stephenson be excused as a witness on the basis that it would put defendant in an awkward position. The trial court granted Stephenson immunity but prohibited defendant from commenting on it. Stephenson testified and denied any involvement in the escape. Defendant now claims he should have been permitted to comment on Stephenson’s decision to exercise his Fifth Amendment rights. We disagree. See People v Dyer, 425 Mich 572; 390 NW2d 645 (1986). The exercise of a witness’ constitutional right to remain silent should not be used as evidence to support an inference for either side. Dyer, supra, p 581, quoting People v Diaz, 98 Mich App 675, 684; 296 NW2d 337 (1980).
To summarize, we find that the trial court’s instructions to the jury were erroneous as they did not state completely all of the elements of the offense of aiding and abetting a prison escape. Accordingly, we reverse defendant Crousore’s conviction. Upon retrial the trial court should heed our holding with respect to the suppression of the pistol found in defendant’s home.
Reversed as to defendant Crousore; affirmed as to defendant Wyngaard.
M. J. Kelly, P.J., concurs in the result. | [
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D. E. Holbrook, Jr., P.J.
Richard Dagen (hereinafter plaintiff) and his wife, Charlene Dagen, appeal as of right from the circuit court order granting defendant Village of Baldwin’s motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3), now MCR 2.116(C)(8) and (10). We find that plaintiff’s recovery under the Workers’ Disability Compensation Act is the exclusive remedy for his alleged personal injuries and affirm the order in that regard. However, we find that plaintiff has stated a claim for breach of contract and, therefore, remand for further proceedings on this claim.
On August 24, 1982, plaintiff suffered a permanent knee injury when he fell from the roof of a building owned and maintained by the village. At the time of his injury, plaintiff was a welfare recipient who was required to participate in the Community Work Experience Program (cwep) sponsored by the Department of Social Services. Under the program plaintiff was sent by the dss to work for the village. Plaintiff was shingling the roof of a village maintenance building when he fell.
On December 5, 1983, plaintiff and his wife commenced this lawsuit in circuit court against the village and Theodore Gregg, the training program worker for the county dss. Plaintiffs’ complaint alleged that defendants were negligent in failing to provide adequate safety equipment or training, providing negligent supervision, allowing the roof to deteriorate to an unsafe condition, providing untrained personnel, and failing to use proper care and caution.
On October 9, 1984, the village filed a motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3), contending that plaintiff’s claim was barred by the exclusive remedy provision of the wdca and by the doctrine of governmental immunity. Following a hearing on the motion, the trial court agreed that plaintiff’s claim was barred by the exclusive remedy provision of the wdca. However, the court declined to rule on defendant’s governmental immunity defense pending the outcome in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984).
Prior to entry of the order on the motions, plaintiff moved to amend his complaint to add a count for breach of contract. Thereafter, defendant village was granted summary judgment with respect to this claim as well. The claims against defendant Gregg were also dismissed. Gregg was not represented on appeal.
On appeal plaintiff contends that his claim against the village is not barred by the exclusive remedy provision of the wdca. We need not decide this claim because, even assuming recovery under the wdca was not plaintiff’s sole remedy, plaintiff’s recovery from the village for personal injuries under a tort theory is barred by governmental immunity.
In Ross, supra, the Supreme Court held that all governmental agencies are immune from tort liability to the extent that they are engaged in governmental functions. The Court defined "governmental function” as follows:
[A] governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature [as defined in MCL 691.1413; MSA 3.996(113)] or falls within one of the other statutory exceptions to the governmental immunity act. [Ross, supra, p 620.]
We find that the care and maintenance of public property within the village is a governmental function, since it is expressly mandated by statute. See MCL 67.1; MSA 5.1285. Since the village was engaged in the maintenance of one of its buildings at the time of plaintiff’s injury, it is immune from tort liability in this instance.
Although MCL 691.1406; MSA 3.996(106) provides an exception to the general grant of immu nity from liability where the injuries arise out of dangerous or defective conditions in public buildings under the governmental agency’s control, we do not believe that the public buildings exception is applicable here.
In providing for the exceptions to the general grant of immunity found in § 1407, MCL 691.1407; MSA 3.996(107), the Legislature intended to protect the general public from injury by imposing upon the governmental agencies the duty to maintain safe public places, whether such places are public highways or public buildings. Bush v Oscoda Area Schools, 405 Mich 716, 731-732; 275 NW2d 268 (1979). In the instant case, plaintiff was injured when he fell from the roof of the village maintenance building, not as a member of the general public, but as a worker repairing the roof. In Zawadzki v Taylor, 70 Mich App 545; 246 NW2d 161 (1976), lv den 399 Mich 875 (1977), a panel of this Court noted that the thrust of the public building statute is to impose an obligation to repair and maintain structural parts of public buildings. A complaint alleging a dangerous or defective condition resulting from the failure to provide equipment does not fall within the exception:
The thrust of the statute is to impose an obliga tion to "repair and maintain public buildings,” viz.: to repair and maintain something that either was or should have been a structural part of the building. We do not construe the statute as referring to repair or maintenance of a piece of equipment which was not present in the ñrst instance and which could not reasonably be considered to be part of the building. We hold that a complaint alleging a "dangerous or defective condition” resulting from the failure to provide an item of equipment, does not fall within the "public building exception” unless the danger causing the injury resulted from a condition of the building itself rather than resulting from the activities or operations conducted within the building. To hold otherwise would expand the "building” exception into an operation or activities exception. See Lockaby v Wayne County, 63 Mich App 185; 234 NW2d 444 (1975). [Zawadzki, supra, p 551. Emphasis supplied.]
In this case, plaintiff claims that the public building exception is applicable because defendant village failed to provide safety equipment, i.e., roof jacks, while the roof was being used as a work place. The equipment would not have been a structural part of the building installed for purposes of insuring the safety of the general public. Further, the danger which caused plaintiffs injury was the result of activities or operations on the building rather than a result of the condition of the building itself. Hence defendant’s failure to provide such safety equipment does not fall within the defective building exception.
The question of whether a part of a building is dangerous or defective is to be determined in light of the "uses or activities” for which the building is specifically assigned. Bush, supra, p 731. Apart from the repair work, the roof was serving as a cover for a public building which housed mainte nance equipment. The building was not a place used by the general public and, hence, was not a public building within the meaning of the statute. Consequently, we conclude that plaintiff has failed to state a claim in avoidance of governmental immunity.
Although Ross, supra, had not been decided prior to the hearing on defendant’s motion for summary judgment, it is nevertheless applicable. In Hyde v University of Michigan Bd of Regents, 426 Mich 223; 393 NW2d 847 (1986), the Supreme Court held that Ross was to be given limited retroactive effect. That is, the rules articulated in Ross are to be applied to "all cases commenced after the date our opinion was issued (January 22, 1985), and to those cases pending either in trial or appellate courts on that date which properly raised and preserved a governmental immunity issue.” Hyde, supra, p 241. We find Ross applicable here since the instant case was pending in trial court at the time Ross was decided.
Although we find that plaintiffs claim for personal injury damages is barred by the doctrine of governmental immunity, our analysis of this case does not end here. Plaintiffs first amended complaint alleged a breach of contract. The trial court dismissed this claim pursuant to defendant’s oral motion for summary judgment. We find that the trial court erred.
A governmental agency does not have immunity from actions arising out of contracts to which it is a party:
In Ross, the Supreme Court held that "[i]f a plaintiff successfully pleads and establishes a non-tort cause of action, [MCL 691.1507; MSA 3.996(107)] will not bar recovery simply because the underlying facts could have also established a tort cause of action.” Ross, pp 647-648. [Landry v Detroit, 143 Mich App 16, 21; 371 NW2d 466 (1985), lv gtd 424 Mich 876 (1986). See also Davidson v Michigan, 42 Mich App 80, 83; 201 NW2d 296 (1972).]
Furthermore, the exclusive remedy provision of the wdca does not preclude plaintiffs claim for breach of contract. Milton v Oakland Co, 50 Mich App 279, 284; 213 NW2d 250 (1973).
Although plaintiff was not a party to the cwep contract between the Department of Social Services and defendant, we find that plaintiff has sufficiently pled that he was a third-party beneficiary to the contract. By statute, any person, for whose benefit a promise is made by way of contract, has the same right to enforce the promise that he would have had if the promise had been made directly to him as the promisee. MCL 600.1405; MSA 27A.1405. See also Spiklevitz v The Markmil Corp, 136 Mich App 587, 592; 357 NW2d 721 (1984). A promise is construed to have been made for the benefit of a person whenever the promisor has undertaken to give or to do or to refrain from doing something directly to or for said person. MCL 600.1405(1); MSA 27A.1405(1); Spiklevitz, supra, p 592.
The contract in the case at hand provides that cwep participants shall not be assigned to work involving a significant degree of risk to life or health, and shall be provided training and instruction on safety:
3. Working Conditions
A. Work assignments may be made for any work typical of that performed by the agency. However, cwep participants shall not be assigned to perform work that entails a significant degree of risk to life or health.
cwep agency
2. Training
The cwep agency must provide orientation and training to include teaching the skills which are required of the job to be performed as well as instruction about safety and proper work attitudes and habits.
We find that the contract at issue may be construed to benefit plaintiff, since the promises made by defendant village upon entering into the agreement clearly and directly benefitted plaintiff’s health and safety. Consequently, we conclude that plaintiff is a third-party beneficiary to the contract between the dss and defendant village. Plaintiff sufficiently alleged a third-party beneficiary theory in his amended complaint:
COUNT m: BREACH OF CONTRACT
13. In return for the free labor provided by the Lake County Department of Social Services under the cwep, Defendant Village of Baldwin promised
(a) not to assign cwep workers to work entailing a significant degree of risk to life or health;
(b) to adequately supervise cwep workers;
(c) to adequately train cwep workers so as to do their job properly and safely;
(d) to provide reasonable work conditions; and
(e) to assume liability for personal injuries incurred by cwep workers while performing their assigned duties.
14. Said promises were made in contemplation of and for the beneñt and protection of, third persons such as plaintiff Richard R. Dagen.
Hence we find that plaintiff’s amended complaint states a claim upon which relief can be granted and the trial court erred in granting defendant summary judgment on this claim.
Finally, we decline to review plaintiffs contention that by entering into the above contract, defendant village waived its governmental immunity defense by agreeing to assume liability for personal injury while the participants were performing their assigned duties. Plaintiff has failed to state any case law in support of the proposition that governmental immunity may be contractually waived. A party may not leave it to this Court to search for authority to sustain or reject his position. Butler v DAIIE, 121 Mich App 727, 737; 329 NW2d 781 (1982). A statement of position without supporting citation is insufficient to bring an issue before this Court. Butler, supra. In any event, governmental immunity may be waived only where it is allowed by express statutory enactment or by necessary inference from a statute. Benson v State Hospital Comm, 316 Mich 66, 73; 25 NW2d 112 (1946); The William C Reichenbach Co v Michigan, 94 Mich App 323, 336; 288 NW2d 622 (1979).
In conclusion, a decision on plaintiffs claim that his recovery under the wdca is not his exclusive remedy was not rendered because, in any event, recovery from the village for his personal injuries is barred by the doctrine of governmental immunity. However, neither the exclusive remedy provision nor the doctrine of governmental immunity bar plaintiff’s claim for breach of a third-party beneficiary contract.
Affirmed in part and reversed in part. Remanded for further proceedings.
D. A. Roberson, J., concurred.
Section 1406 provides:
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. [See also Ross, supra, p 591.] | [
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Danhof, C.J.
On February 12, 1980, a fire de stroyed the place of business of plaintiff, United Gratiot Furniture Mart, Inc. Defendant, Michigan Basic Property Insurance Association, insured plaintiffs inventory under a commercial fire policy but refused to pay plaintiffs claim of loss. Defendant contended that plaintiff’s president and largest shareholder, Samuel Goldberg, either set or procured the setting of the fire. Plaintiff filed the instant action to collect the face amount of the inventory fire policy. The jury entered a verdict of no cause of action, finding that defendant had shown by a preponderance of the evidence that Goldberg was involved in starting the fire and that Goldberg’s control in the corporation was so extensive that his actions should be imputed to the corporation and the corporation’s claim of coverage should be denied.
Plaintiff first argues that defendant’s defense was insufficient as a matter of law to permit defendant to deny coverage. This argument was raised in the context of a motion for directed verdict at the close of proofs. Plaintiff argues that the corporation was the insured, not Goldberg, and that denying coverage to the corporation unfairly penalizes the other shareholders, who owned fifty-six percent of the corporation’s stock and who were not alleged to have participated in the setting of the fire.
As support for its position, plaintiff relies on Danish Inn, Inc v Drake Ins Co of New York, 126 Mich App 349; 337 NW2d 63 (1983). However, Danish Inn does not address the issue now before us. In Danish Inn, the trial court granted summary judgment in favor of the defendant insurer, finding that the sole fact that the plaintiff corpora tion’s principal shareholder and president had pled guilty to an arson-related misdemeanor charge was insufficient to enable the insurer to deny payment to the corporation. The main issue in Danish Inn was whether evidence of the guilty plea was admissible. The Court found that it was not admissible and, in so doing, criticized the decision of another panel of this Court in Imperial Kosher Catering, Inc v Traveler’s Indemnity Co, 73 Mich App 543; 252 NW2d 509 (1977), as not being "sound law.” The Imperial Catering panel had concluded that evidence of the arson convictions of the officers and sole shareholders of a corporation was admissible and provided a sufficient basis upon which to grant accelerated judgment. In the instant case, there is no issue concerning the admissibility of a criminal conviction as substantive evidence in a civil case arising out of the same occurrence which produced the conviction. In the instant case, the fact that Samuel Goldberg participated in the arson was demonstrated by evidence introduced at trial. Danish Inn cannot be read as addressing any of the issues now being raised. Moreover, Danish Inn expressly recognized that the actions of a corporation’s officer and principal shareholder could be imputed to the corporation in circumstances where there is a finding that the corporate entity should be disregarded. 126 Mich App 351. By its verdict, the jury made such a finding in the instant case.
The instant case presents an issue of first impression for the appellate courts of this state, i.e.: In what situations should an insurance company be allowed to deny payment to a corporation for a fire loss when evidence demonstrates that a shareholder wilfully set the fire?
Plaintiff argues that the corporate form should be disregarded only when the arsonist is the sole shareholder. In situations where the arsonist is not the sole shareholder, plaintiff argues that insurers should be required to pay the corporation’s claim. An insurer may then, as a subrogee of the corporation, bring an action against the arsonist to recover the amount it had been required to pay to satisfy the corporation’s claim. Plaintiff contends that such a procedure would provide insurers adequate protection without injuring innocent shareholders.
Defendant contends that insurers should be allowed to refuse payment in all situations in which the stockholder who commits the arson exercised "complete dominance and control” over the corporation — regardless of that stockholder’s percentage share of ownership in the corporation. The trial court agreed with defendant and instructed the jury accordingly.
The general rule is set forth in 43 Am Jur 2d, Insurance, § 494, p 565:
As a general rule, the wilful burning of property by a stockholder of a corporation is not a defense against the collection of insurance by the corporation; nor can a corporation be prevented from collecting the insurance because its agents wilfully set fire to the property without the participation or authority of the corporation or of all the stockholders of the corporation. On the other hand, if there is a conspiracy among the stockholders of a corporation to burn the property of the corporation, and the property is burned in pursuance of the conspiracy, such act is chargeable to the corporation and is a good defense to an action on a fire insurance policy. Likewise, under the principle of law that no one should be allowed to proñt by his own wrong, an insured corporation will not be allowed a recovery on Are insurance policies where the incendiarist owns all or practically all of the stock in the insured corporation, or is in exclusive management of the corporate property. [Emphasis added.]
The subject has been extensively annotated. See Anno: Fire insurance on corporate property as affected by intentional destruction by a corporate officer, employee, or stockholder, 37 ALR3d 1385.
In almost every case which has addressed the issue now before us, it appears that the point on which the decision turns is the degree of control which the incendiarist has exerted over the affairs of the corporation. If the individual who set or procured the setting of the fire dominates the corporation to such an extent that he has exclusive control over the corporation, the corporation is precluded from recovering benefits under its fire insurance policy. See, for example, D I Felsenthal Co v Northern Assurance Co, Ltd, 284 Ill 343; 120 NE 268 (1918); Northern Assurance Co v Rachlin Clothes Shop, Inc, 32 Del 406; 125 A 184 (1924); Kimball Ice Co v Hartford Fire Ins Co, 18 F2d 563 (CA 4, 1927); Miller & Dobrin Furniture Co, Inc v Camden Fire Ins Co Ass’n, 55 NJ Super 205; 150 A2d 276 (1959); Vicksburg Furniture Mfg, Ltd v Aetna Casualty & Surety Co, 625 F2d 1167 (CA 5, 1980); Continental Ins Co v Gustav’s Stable Club, Inc, 211 Neb 1; 317 NW2d 734 (1982).
This rule is applied even when the arsonist is not a majority stockholder. Kimball Ice, supra (the arsonist owned twenty-five percent of the corporation’s stock); Northern Assurance Co, supra (the arsonist was not "the largest cash investor”), Continental Ins Co, supra, (the arsonist owned fifty percent of the stock and his ex-wife owned the other fifty percent); Vicksburg Furniture, supra (the arsonist owned twenty-five percent).
However, in instances where it is not shown that the arsonists had exclusive control over the corporation, insurers are not permitted to deny coverage. See, e.g., Erlin-Lawler Enterprises, Inc v Fire Ins Exchange, 267 Cal App 2d 381; 73 Cal Rptr 182 (1968); Fidelity-Phenix Fire Ins Co of New York v Queen City Bus & Transfer Co, 3 F2d 784 (CA 4, 1925).
The cases have expressed various rationales for their holdings. In D I Felsenthal, supra, the Supreme Court of Illinois relied on "[e]very principle of insurance law and sound reasoning” to conclude that a corporation should not be allowed to recover on a policy for the destruction of corporate property when the fire was set by an individual who was the beneficial owner of "practically all of the stock in the corporation and who had absolute management and control of its affairs and its property.” 284 Ill 348-349. In Northern Assurance Co, the Supreme Court of Delaware found that the acts of a person with exclusive control which were done for the purpose of benefiting the corporation were to be regarded as acts of the corporation itself. 32 Del 415-421. In Kimball Ice, supra, the court found insurance fraud would be encouraged if the corporation could simply turn control over to a single person, who could effect the wilful burning of the insured’s premises, and then assert a claim of innocence on the part of the other shareholders. 18 F2d 567. In Miller & Dobrin Furniture Co, the court based its decision on the equitable principles that the corporate form should not be used as a shield to perpetrate injustice and that no one should be allowed to benefit by his own wrongdoing. 55 NJ Super 218-219.
We find the above-cited authorities persuasive. We hold that an insurance carrier may assert arson as a defense against a corporation’s claim of fire loss if it is factually demonstrated that the individual who set or procured the setting of the fire exercised complete dominance and control over the affairs of the corporation.
We reject plaintiff’s contention that it would be more equitable to require defendant to pay the claim and then bring an action against Goldberg as plaintiff’s subrogee. Our rejection is based on two grounds. First, there would be no guarantee that the insurer would in fact be able to recover from the arsonist the amount it had paid on the policy. The insurer would be able to recover only to the extent of the arsonist’s personal assets. Second, we are not convinced that such a rule would benefit the other shareholders. The rule which we have adopted applies only in situations where the incendiarist has pervasive control over the corporation. Thus, the incendiarist would control the disposition of the insurance proceeds which the corporation would receive. In all probability, he or she would keep the proceeds within the corporation. In that event, the shareholders who were not involved would not see any of the insurance funds even if the corporation were paid. By using the corporate cloak in this manner, the arsonist could retain and personally enjoy the benefits of the proceeds contrary to the equitable principles upon which our decision is based. Plaintiff’s suggested remedy is subject to too great a potential for abuse.
To the extent the rule we have adopted might in some situations adversely affect shareholders who did not participate in the arson, the seeming unfairness of such a rule is addressed in Northern Assurance Co, supra:
Those in a corporation who have charge of its control are supposed to manage its assets in the way they regard as most advantageous to its welfare. If instead for instance of selling the personal property for profit, those who do the thinking and planning for the corporation think it best to burn it up and collect much more than its value from an insurance company, in our judgment all that need be said about the matter is that such is the manner in which the responsible management deems it best to handle the corporate affairs. [32 Del 421.]
In other words, the value of a noncontrolling interest in a corporation is always largely dependent on the judgments and choices which the controlling faction makes. When those in control make bad decisions, the corporation suffers loss. As a natural consequence, such loss falls upon all shareholders.
We find that the trial court properly adopted the "dominance and control” standard. Thus, the trial court properly denied plaintiffs motion for directed verdict.
In preparation of the possibility that we might reject its first argument, plaintiff next argues that the trial court improperly instructed the jury to ignore the corporate existence if it found that the alleged arsonist "controlled the management and the operation of the corporation.” Defendant argues that this instruction failed to provide the jury with specific standards as to what constituted "control” and was so vague that it deprived plaintiff of a fair trial.
Plaintiff presented the same argument to the trial court after the jury had reached its verdict. In its opinion and order the trial court stated:
The instructions as to this test of "dominance and control” were scanty, and if there were a true fact question on this issue a new trial would obviously have to be granted. However, the proofs on Mr. Goldberg’s absolute control of the Plaintiff corporation were ample, and the Court finds as a matter of law that a reasonable jury could not find that he did not exercise complete control and. domination over the affairs of the corporation. Since no other finding could be reached on the control issue, no harm has been done by the failure to expand upon this test in the instructions.
While we agree that the instruction could have been more specific, we do not believe reversal is required. If a jury charge is erroneous or inadequate, reversal is required only where failure to reverse would be inconsistent with substantial justice. Willoughby v Lerhbass, 150 Mich App 319, 336; 388 NW2d 688 (1986); Johnson v Corbet, 423 Mich 304; 377 NW2d 713 (1985); MCR 2.613(A). We have reviewed the record and agree with the trial court that no reasonable jury could have concluded that Samuel Goldberg did not exclusively control plaintiff-corporation. Goldberg in fact testified that none of the other shareholders played an active part in the management of the business. No testimony was introduced to show any instance where anyone had exerted control or made a business decision that was not subject to Goldberg’s approval. Nor has plaintiff argued on appeal that Goldberg did not in fact control plaintiff corporation. Under these circumstances, plaintiff was not prejudiced by the broadness of the instruction given to the jury.
Finally, plaintiff argues that there was insufficient evidence presented at trial to support the jury’s finding that Goldberg set or procured the setting of the fire.
In George v Travelers Indemnity Co, 81 Mich App 106, 112; 265 NW2d 59 (1978), Iv den 405 Mich 844 (1979), this Court stated:
Where an arson defense is raised by an insurer, the burden is on the insurer to prove by a preponderance of the evidence that the plaintiff set fire to the building or caused it to be set on fire. Walz v Peninsular Fire Insurance Co, 221 Mich 326, 343; 191 NW 230 (1922). The elements of arson may be established by circumstantial evidence. People v Porter, 269 Mich 284, 292; 257 NW 705 (1934), Peterson v Oceana Circuit Judge, 243 Mich 215, 217; 219 NW 934 (1928). Where there is independent evidence of the incendiary origins of a fire, Michigan courts have affirmed arson convictions based on circumstantial evidence of motive (such as insurance coupled with business difficulties) plus opportunity (such as access to the building). People v Dorrikas, 354 Mich 303, 307-308; 92 NW2d 305 (1958); People v Bailey, 42 Mich App 359, 361-363; 202 NW2d 557 (1972); People v Horowitz, 37 Mich App 151, 153-158; 194 NW2d 375 (1971), lv den, 387 Mich 753 (1972).
See also, Crossley v Allstate Ins Co, 139 Mich App 464; 367 NW2d 760 (1984).
In the instant case, both parties agreed that the fire had been deliberately set. Also, defendant presented evidence that plaintiffs interest and sale income had fallen precipitously in the months before the fire. Moreover, there was substantial evidence that the fire had been set by a person with access to the building. The building had an elaborate alarm system which could not be by passed when it was in the "On” mode. Goldberg testified that the alarm was on when he locked the door on the night prior to the fire. After the fire, the police found no signs of forcible entry. Only Goldberg and one employee had access to the alarm code. Thus, there was sufficient evidence from which the jury could conclude that the fire had an incendiary origin and that Goldberg had both a substantial motive and opportunity to set the blaze. Therefore, the jury was therefore permitted to conclude, based on this evidence, that Goldberg either set or procured the setting of the fire.
Affirmed.
Samuel Goldberg’s wife owns twenty-four percent of the corporate stock, two daughters each own twelve percent and the corporation’s attorney owns eight percent.
Plaintiff argues that this procedure is required by Danish Inn, supra. We have already indicated that Danish Inn is not on point. Moreover, even within its own context, Danish Inn does not mandate that such is the exclusive remedy available to insurers in situations where a stockholder who does not have sole ownership of the corporation wilfully burns corporate property. The Danish Inn panel stated that an insurer "could” bring such an action against the stockholder as the corporation’s subrogee. The Court also stated that the an insurer could rely on its defenses under the contract to deny payment to the corporation. 126 Mich App 352. Since we conclude infra that the corporation’s veil was properly pierced, defendant in the instant case is relying on a defense under the contract. | [
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MacKenzie, J.
Petitioner appeals as of right from an opinion and judgment of the Michigan Tax Tribunal. We reverse.
At issue in this case is the proper method for determining the true cash value of petitioner’s property, a low-income housing project located in respondent township, which was built and is operated under § 236 of the National Housing Act, as amended, 12 USC 1715z-l, and the Michigan State Housing Development Authority Act, MCL 125.1401 et seq.; MSA 16.114(1) et seq. Such property is commonly referred to as "mshda 236 property” or simply "236 property.” Under this program, the Michigan State Housing Development Authority loans money to developers to build low-income housing and the Department of Housing and Urban Development (hud) pays all but one percent of the loan interest. In exchange for this subsidy, developers agree to strict regulation by mshda, including rent control.
The subject property consists of 150 units in six apartment buildings and fourteen townhouses. It is situated on fifteen acres surrounded by farm land, two miles from a shopping center. The complex was built in 1975. To finance the project, petitioner received from mshda a ninety percent loan at 8 Vs percent interest for forty years in the amount of $2,937,700. The interest subsidy, which is paid each month by hud directly to mshda, reduces the effective rate of interest to one percent. Under the terms of its agreement with mshda, petitioner can rent only to persons making between fifty percent and eighty percent of the median income level in its area. Rents are determined each year through a budgeting process. The managing agent estimates the amount necessary in the coming year to pay debt service (at the one percent effective rate), administrative and operating expenses, taxes, insurance, a limited dividend to the owners (set by the agreement at six percent of their initial equity/down payment, or $9,792 per year) and reserves. Reserves are of two types, a replacement reserve and a development-cost reserve. The replacement reserves are available to make repairs when needed. The development-cost reserves in sure that funds are available to cover unforeseen expenses and necessary improvements.
After estimating expenses, rents are set at a level sufficient to cover the total estimate without surplus. The effect of this procedure passes both the project expenses (including taxes) and the government subsidy on to the tenants in the form of reduced rents. If expenses are underestimated in the budgeting process or rents for some other reason fail to cover expenses, the owners are not permitted to withdraw their six percent limited dividend. If operating income is still insufficient, the owners are responsible for making up the deficit. As of the date of the hearing, the owners had never received a limited dividend. There was no testimony whether it had ever been necessary for the owners to pay funds to make up a shortfall in operating income.
Mshda also controls the project in several other respects. It must approve all rent schedules. It inspects the physical condition of the property at least once a year and has the power to order repairs. The project cannot be sold without mshda approval. Rents cannot be raised to accommodate a new debt created by a sale. The mortgage is tied to the property; it cannot be paid off and cannot be refinanced for a period of twenty years, in the instant case, until 1994.
On June 25, 1981, petitioner filed a petition in the Tax Tribunal, alleging that the value of its property had been assessed at $1,366,700 for 1981 taxes and that this amount was $454,200 above fifty percent of the property’s true cash value. Petitioner subsequently amended its petition to challenge assessments for the 1982, 1983 and 1984 tax years. Respondent, on the other hand, alleged that the property had been assessed at less than fifty percent of true cash value and requested that petitioner’s assessment be increased. Following a hearing, the Tax Tribunal issued an opinion and judgment in favor of respondent. The opinion and judgment set revised assessments for the tax years 1981 to 1984 at $1,480,950, $1,481,550, $1,482,925 and $1,497,700, respectively. It is from this judgment that petitioner appeals.
The Tax Tribunal has exclusive and original jurisdiction to review final decisions relating to assessments under the property tax laws. MCL 205.731; MSA 7.650(31). A proceeding before the tribunal is independent and de novo. Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229, 232-233; 276 NW2d 566 (1979); MCL 205.737(1); MSA 7.650(37)(1).
This Court’s review of tribunal decisions is provided by Const 1963, art 6, § 28:
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.
In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation.
Since the instant case involves an assessment dispute, the constitutional limitation applies. The precise meaning of the limitation, however, is unclear. This Court has occasionally stated that it is bound by the tribunal’s factual determinations and may consider only questions of law. See, e.g., Alhi Development Co v Orion Twp, 110 Mich App 764, 767; 314 NW2d 479 (1981). The general view, however, appears to be that the tribunal’s failure to base its decision on competent, material and substantial evidence on the whole record is an error of law within the meaning of Const 1963, art 6, § 28. See Antisdale v Galesburg, 420 Mich 265, 277; 362 NW2d 632 (1984); Teledyne Continental Motors v Muskegon Twp, 145 Mich App 749; 378 NW2d 590 (1985); Kern v Pontiac Twp, 93 Mich App 612, 620; 287 NW2d 603 (1979).
The Legislature is charged with the duty of providing a uniform system of real property taxation based on assessment of true cash value (hereafter tcv). Const 1963, art 9, § 3. Typically, "cash value” means "usual selling price,” meaning the price which could be obtained at a private, not forced, sale. MCL 211.27; MSA 7.27. Tcv and "fair market value” are synonymous. CAF Investment Co v State Tax Comm, 392 Mich 442, 450; 221 NW2d 588 (1974).
Any method for determining tcv which is recognized and reasonably related to the fair market value is an acceptable indication of tcv. Presque Isle Harbor Water Co v Presque Isle Twp, 130 Mich App 182, 190; 344 NW2d 285 (1983). Generally, there are three accepted methods of valuation: the capitalization-of-income approach the cost-less-depreciation approach, and the market approach. Each of these approaches is briefly described in Antisdale, supra, p 276-277, n 1. It is the duty of the Tax Tribunal to accept the approach which provides the most accurate valuation under the circumstances of each case. Id., p 277.
In the instant case, the Tax Tribunal found that the income approach most accurately reflected the true cash value of the subject property. Under this approach, the appraiser converts a stream of income into a value for the entire property. For example, if a property produces an annual income of $100,000 and ten percent is accepted as an appropriate rate of return, the property is valued at $1,000,000 because it would take that amount of cash invested at ten percent to produce the same amount of income. If five percent is adopted as the capitalization rate, the property would be valued at $2,000,000. If twenty percent is accepted, the value would be $500,000. Thus, the lower the capitalization rate, the higher the value of the property and vice versa. As is apparent, the most difficult aspect of the income approach is determining the proper capitalization rate.
At the hearing before the Tax Tribunal, petitioner presented the testimony of appraiser Laurence Allen who advocated an income approach to valuation which takes into account an equity component and a mortgage component. The basics of this approach are described in Meadowlanes Limited Dividend Housing Ass’n v Holland, 156 Mich App 238; 401 NW2d 620 (1986). Using this approach, Allen concluded that the value of the subject property for each tax date in dispute was:
12/31/80 12/31/81 12/31/82 12/31/83
Equity
Cash Flow 49,039 48,074 46,935 45,592
Tax Shelter 235,080 616,458 595,753 571,386
Reversion 39,351 19,024 23,945 29,958
Mortgage 981,534 782,267 1,183,942 1,264,037
Total Value 1,305,003 1,465,823 1,850,576 1,911,003
Escrow
Balances (236,390) (219,702) (258,269) (319,538)
Total Real
Estate Value 1,068,613 1,246,121 1,592,307 1,591,465
Rounded Value 1,070,000 1,250,000 1,600,000 1,600,000
In reaching these amounts, Allen valued the reversion by projecting the amount of net operating income in 1994 (when petitioner would first have the option of leaving the mshda program), capitalizing it at a twelve percent overall rate plus a 2.5 percent tax capitalization rate, i.e., at 14.5 percent, and then discounting the result to present value. Allen used a twelve percent overall capitalization rate because he believed that was a typical rate "for market projects, on a cash basis.” There is nothing to indicate that this rate was supported by a market study.
Respondent presented the testimony of its assessor, David Swinson, and investment analyst, Irvin E. Johnson, whose "mortgage equity” method Swinson used to value petitioner’s property under the income approach. Using this method, Swinson first determined that petitioner’s net operating income for the four years in dispute was $182,040, $192,373, $180,525 and $215,169, respectively, excluding debt service. Next, to determine capitalization rate, Swinson used the "mortgage-equity” technique as developed by Mr. Johnson. Under this technique, the capitalization rate is determined by plugging six factors into a formula. The formula was never introduced into evidence and was never thoroughly explained. Generally, appraisers are able to derive the proper capitalization rate using Mr. Johnson’s technique by reference to precomputed tables such as those contained on the 350 pages at the end of Johnson’s book, Instant Mortgage-Equity (Lexington, Mass: DC Heath & Co, 1980). However, because the factors which Swinson selected fell outside these tables, Swinson had to supply the factor values to Mr. Johnson for special computation.
The six factors and the values which Swinson selected are:
Equity Yield Rate (per regulatory agreement) 6.0 percent
Holding Period (per resale of comparables) seven years
Loan Ratio (per regulatory agreement and mortgage) ninety percent
Interest Rate (per mortgage) 8V8 percent
Loan Amortization Term (per mortgage) forty years
Appreciation (four percent per year, compounded) thirty percent
From these factors, Johnson computed the proper overall rate of capitalization to be 4.30131 percent. To this was added an effective tax capitalization rate of approximately 2.5 percent for each tax year in dispute. Using a total capitalization rate of approximately 6.85 percent for each year in question, Swinson then determined that the value of the subject property under the income approach in rounded figures was $2,700,000, $2,800,000, $2,600,000, and $3,100,000, respectively. Swinson testified that if he had used one percent for the interest rate factor, instead of the 8 Vs percent listed in the mortgage with mshda, the property’s value "would increase significantly.” Moreover, while Swinson testified that the "main benefit” of owning the subject property arose from income tax savings, Swinson acknowledged that the mortgage-equity capitalization technique which he had employed did not take tax savings into consideration. If it had, the appraisal would have been "much higher.”
The tribunal accepted respondent’s mortgage-equity formula to derive an overall capitalization rate. Petitioner argues that this technique was improperly employed and resulted in a capitalization rate which was too low and, accordingly, an assessment amount which was too high. We must agree, for several reasons.
First, as presented here, the mortgage-equity technique appears to be ill-equipped to account for the unique mortgage rate feature of 236 properties. The technique assumes that a sale of the subject property has just occurred. In his book, Mini-Math for Appraisers (Chicago: International Ass’n of Assessing Officers, 1974), p 51, Mr. Johnson states:
An appraisal for market value assumes the property, to be encumbered by a new maximum institutional loan at current interest rates. It is also assumed that the buyer pays cash to the new loan, thereby automatically adjusting the market price to a cash equivalent. Market value is considered to be the value to persons in general, without being related to income tax brackets or unusual financing.
An appraiser effectuates these assumptions by compiling data and determining six variables. Johnson testified that it is "critical” that all data be extracted from the particular submarket in which the subject property is located. Otherwise value would be distorted.
In the instant case, as Johnson testified, one percent effective interest is typical financing within the instant submarket. In order to properly employ the mortgage equity technique, therefore, this interest rate should be used. However, the low interest rate results from the government subsidy and therefore a valuation approach which values the financing at the one percent level has the effect of valuing the subsidy. Under Michigan case law, the value of an interest reduction subsidy should not be taken into account. It has been held that this feature of a property does not justify a low capitalization rate. Congresshills Apartments v Ypsilanti Twp (After Remand), 128 Mich App 279, 285-286; 341 NW2d 121 (1983) (Congresshills II). Thus, proper application of the mortgage- equity technique in this particular situation requires assumptions which are contrary to Michigan tax law.
To get around this problem, Swinson used 8 Vs percent interest for the mortgage rate factor, the rate stated in the mortgage agreement. However, use of this rate was also improper under the mortgage-equity technique since it was not a "current rate” selected from either the submarket or the general market and had no relationship to the value of the property either originally or during the disputed tax years. Since hud pays the difference between the stated rate, whatever it is, and one percent, the stated rate in the mortgage could have been fifteen percent or three percent and neither rate would have affected the actual expenses of the subject property or its actual operating income. Michigan case law requires that actual income figures and actual expenses be used to determine tcv of property. Congresshills Apartments v Ypsilanti Twp, 102 Mich App 668, 678; 302 NW2d 274 (1981) (Congresshills I).
Second, 236 properties present unique return on investment problems which appear to make the mortgage-equity technique ill-suited to the valuation of such properties. In this case, Swinson selected six percent for the formula’s equity-yield factor, because this was the maximum amount permitted under the regulatory agreement as a return on the investor’s down payment. However, the uncontroverted testimony indicated that the owners had never received this amount. Also, under the mortgage-equity technique, the "yield on equity” variable is to be determined by yield over the entire length of the assumed holding period and includes the "net reversion” (resale value at the end of the holding period less loan value) in addition to cash flow. See Irvin E. Johnson, Instant Mortgage-Equity, supra, p 3. Respondent purported to compute only cash flow. Moreover, the six percent, as the yield on equity, was not an actual rate of return and had little relationship to the value of the property.
Third, in Antisdale, supra, p 285, our Supreme Court recognized that the foremost value of 236 subsidized properties is the tax benefits they generate to the owner. The mortgage-equity technique, however, totally disregards this aspect of the property’s value.
The mortgage-equity technique creates an impression of accuracy; Johnson himself touted the technique as "a magic formula.” Nevertheless, no formula can be any more accurate than the variables upon which it relies. In this case we are convinced that the Tax Tribunal erred as a matter of law by accepting respondent’s figures for both the equity-yield and mortgage rate variables of the mortgage-equity formula, in that these figures were not computed according to the basic requirements of the formula itself. What resulted was a capitalization rate which bore little relationship to the subject property and which appears to be totally arbitrary. We note, for example, that in Congresshills II, supra, p 286, this Court held that 6.24 percent, 6.1895 percent and 6.201 percent capitalization rates for 236 property were " 'absurdly low’ and erroneous as a matter of law.”
In our opinion, the tribunal also erred by relying in part upon respondent’s market approach. In Antisdale, supra, p 281, which was decided after the tribunal’s decision in the instant case, our Supreme Court held that it is error to assume that "the outstanding mortgage balance of a mortgage bearing an interest rate well below market rates has a dollar for dollar relationship to the value of the property.” The Court wrote:
As an example, in the present case, the hypothetical purchaser of the subject property would have to assume, approximately, a mortgage with a principal balance of $1,500,000. That amount, however, is subject to an interest rate of only 1% and is payable over 40 years. Under the terms of the mortgage, monthly payments of $3,764 were necessary. Petitioners submitted evidence which showed that an investment of $433,232 at an interest rate of 10.25 percent would generate enough income to make those $3,764 payments. To say that the mortgage balance had a value of $1,500,000 when it could be entirely assumed by giving up the use of $433,232 is to give an entirely new and foreign meaning to the word value. By failing to discount the outstanding mortgage balance of the comparable properties to the actual cost to the investor the Tax Tribunal adopted a wrong principle. [Id., pp 282-283.]
See also, Washtenaw Co v State Tax Comm, 422 Mich 346; 373 NW2d 697 (1985).
In the instant case, respondent determined the sale price of each comparable by adding the face amount of the down payments, the purchase money mortgage notes and the balance of the assumed mortgages. In each case, the assumed mortgage represented over seventy percent of the sale price. Thus, by failing to discount the balances of the assumed mortgages, respondent’s market analysis greatly overestimated the "selling price” of the comparable properties and consequently over-extrapolated the market value of the subject property.
Petitioner also argues that the Tax Tribunal erred as a matter of law in not applying to this case the approach to valuation applied by the tribunal in Meadowlanes, Michigan Tax Tribunal No. 55933, decided January 6, 1984, which has since been affirmed with modification by this Court. Meadowlanes, supra. We disagree. In CAF Investment Co, supra, p 450, n 2, our Supreme Court stated:
The methods to be used by the assessor are a matter for decision at the assessing level .... Any method for determination of true cash value which is recognized as accurate and reasonably related to fair market valuation will fill the statutory prescription and is an acceptable indicator of true cash value.
In our opinion, the Tax Tribunal was not required as a matter of law to adopt the Meadowlanes approach.
Reversed.
To the extent that Meadowlanes, supra, holds that under Antis-dale, supra, and Washtenaw Co v State Tax Comm, 422 Mich 346; 373 NW2d 697 (1985), the value of a mortgage subsidy, if any, may be included in a real property valuation, we disagree with the Meadow-lanes panel. In our opinion, Meadowlanes erroneously characterized the interest subsidy as a "premiere feature of the tax shelter.” Indeed, the interest subsidy has very little to do directly with the tax shelter aspect of 236 properties. The tax shelter is based on depreciation which is computed from the face amount of the mortgage, not the interest rate. Although we recognize that investors may also take interest payments as deductions, we doubt that they may deduct the interest which the government pays. This supposition is supported by Meadowlanes, supra, p 252, where it is noted that the subsidy is not treated as taxable income to the project’s owner. We assume that if receipt of the subsidy is not income to the project’s owner, its payment to the mortgagee may not be treated as an expense (and thus taken as a deduction). Thus, it appears that the interest subsidy has practically no effect on the tax shelter aspects of the property.
More fundamentally, we think that the Meadowlanes holding is based upon a faulty premise, i.e., that a 236 property buyer would be benefited by a one percent mortgage. While that would normally appear to be a logical assumption, Meadowlanes fails to take into account the effect of the federal government’s involvement in 236 properties. The government regulations require that the subsidy flow to the tenants in the form of reduced rents, not to the property owners. Because the subsidy reduces rent and does not go into the owner’s pocket, a reasonable buyer would not be willing to pay more for the property because of this feature. It follows that the one percent mortgage does not increase the value of the property. Contrary to the conclusion in Meadowlanes, the one percent mortgage (or, in other words, the subsidy) would not be a significant component of a hypothetical sale. Thus, the language in Washtenaw Co, supra, p 365, that significant components of sale price should be considered in determining the value of a property, is inapplicable. Again, the subsidy goes to the tenants, not the property owners.
It is true that the Supreme Court in Antisdale, supra, p 284 concluded that "[wjithout the federally subsidized mortgage such properties would be nearly worthless.” But that does not mean the subsidy should be valued for property tax purposes. The reason is that value for the property tax purpose is defined in market terms. In Antisdale, the Supreme Court also said that it is feasible that as soon as such projects are constructed, they possess market values less than one-half their cost to construct and without the subsidy such projects would not be built. These statements indicate that such projects are bought and sold only with the subsidy in place. To value the subsidy would be to assume otherwise.
Theoretically, the rent restrictions and regulations have a negative value while the interest subsidy has a positive value. Having to be bound by the restrictions would appear to be the price the property owner pays for the subsidy. Thus, it would appear that the restrictions have a value roughly equal to the value of the subsidy and that they cancel each other out. By not valuing the subsidy, one does away with the necessity of subtracting the negative value of the restrictions. Thus, it seems an approach which includes a value for the subsidy but does not subtract the negative value of the government restrictions would be inaccurate.
The problem in cases such as this is that 236 properties do not operate within market principles and are restricted by government regulations designed to keep revenues low, not to maximize profit. In our opinion, the Congresshills II approach is the correct approach if we are to use a market definition of value in this context. The Congresshills II approach demonstrates that projects such as the one in the instant case have a market value equal to little more than the value of the ability to pay off the property’s mortgage at a one percent effective rate. To conclude that such projects have the ability to support the one percent effective rate plus the federal interest subsidy is to conclude that such projects could and would have been built in the free market even without government assistance. Such a holding is diametrically opposite of the Supreme Court’s finding in Antisdale that such property would not have been built without government subsidy.
We express no opinion concerning whether the other factors were properly selected.
Nor does evidence of a recent resyndication proposal submitted to mshda nine months after the last tax day in dispute support the tribunal’s assessment of $3,000,000 for each tax year. Even though the sum of the adjusted terms of the proposal was $4,910,000, discounting both the promissory note and the mortgage balance and subtracting appreciation, if any, would bring this figure well below $3,000,000. | [
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Per Curiam.
Plaintiff appeals as of right from the entry of an order of summary judgment under MCR 2.116(C)(10) in favor of defendant Michigan Department of Transportation. The sole issue on appeal is whether the Department of Transportation had sufficient notice of a dangerous condition in a highway and reasonable time within which to correct the defect before plaintiff’s injury occurred. We find that the notice at issue in the instant case was not sufficient to enable the Department of Transportation reasonable time to correct the defect and, therefore, affirm summary judgment in defendant’s favor.
Plaintiff was injured when the motorcycle he was driving eastbound on Michigan Avenue in Canton Township, Wayne County, ran into a car which was parked partly in the left-hand lane and partly on the median on Michigan Avenue. The parked car was left in that position by its driver after the driver had been involved in a separate collision approximately twenty to thirty minutes before plaintiff’s collision. The Canton Township police and fire departments were present at the scene of the first accident at the time plaintiff collided with the car. Plaintiff filed a claim against defendant, Michigan Department of Transportation. Defendant subsequently filed a motion for summary judgment, which was denied without prejudice. Following the taking of several discovery depositions, defendant renewed its motion for summary judgment, asserting that the lack of notice to the Department of Transportation of the dangerous condition in the road constituted a complete defense and therefore defendant was not liable under the defective highway exception to governmental immunity. MCL 691.1402; MSA 3.996(102). The trial court agreed and granted defendant’s motion.
On appeal plaintiff contends that notice to the Canton Township Police Department of the dangerous condition in the roadway, i.e., the disabled car partly in the left-hand lane, constituted sufficient notice to the Department of Transportation of the defect in the road. We disagree.
MCL 691.1403; MSA 3.996(103) provides that liability will not attach to a governmental agency for injuries caused by defective highways unless the governmental agency having jurisdiction over the highway knew or should have known of the defect and had a reasonable time to repair the defect before the injury took place. In the instant case, the Department of Transportation did not have notice of the disabled vehicle within a reasonable time to remove the vehicle before plaintiffs accident and injuries occurred. Actual notice to the investigating police agency, the Canton Township Police Department, cannot constitute constructive notice to the Michigan Department of Transportation. The police department was neither the agency which had jurisdiction over the highway nor an agency which had contracted to maintain that highway. In Jones v City of Lansing; 273 Mich 623, 628; 263 NW 757 (1935), the Supreme Court addressed a similar issue:
While it is true that a city policeman discovered that the light was out just immediately prior to the accident, defendant calls attention to the case of Corey v City of Ann Arbor, 134 Mich 376 [96 NW 477 (1903)], in which it was held that notice to a city patrolman of icy sidewalks was not notice to the city, since this patrolman was not a highway officer upon whom rested the responsibility for their condition. However, even if this notice to the policeman in the instant case were held to be notice to the city, the city is entitled to reasonable time thereafter in which to remedy the defect. See 1 Comp Laws 1929, § 4228; Fulton Iron & Engine Works v Twp of Kimball, 52 Mich 146 [17 NW 733 (1883)]. It is clear that there was insufficient time in which to make the repairs.
In Peters v Dep’t of State Highways, 400 Mich 50; 252 NW2d 799 (1977), the Supreme Court held that, in order to recover, the plaintiff must show that the state knew, or in the exercise of reasonable diligence should have known, of the defect in the highway and had a reasonable time to repair it before the injury occurred.
We find in the instant case that the trial court was correct in concluding, as a matter of law, that the twenty to thirty minute period between the time of the first accident and plaintiffs collision with the disabled car was not a reasonable time within which the Department of Transportation could have been notified of and have removed the disabled car. Accordingly, we conclude that summary judgment in favor of the Department of Transportation was appropriate.
Affirmed. | [
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Per Curiam.
Plaintiff appeals as of right from an order dismissing his complaint against Donald Arbic, a Michigan State Police trooper, pursuant to MCR 2.116(C)(7) and (10). In a written opinion filed on July 1, 1986, Livingston Circuit Judge Stanley J. Latreille ruled that plaintiffs negligence claim was barred by governmental immunity and that no genuine issue as to any material fact existed as to plaintiffs intentional tort claims and defendant was therefore entitled to a judgment of dismissal as a matter of law.
After reviewing the record and briefs in this matter, we conclude that the excellent opinion written by Judge Latreille should be adopted as our opinion, and we do so by quoting it in its entirety, updating some citations by footnote.
OPINION
I. Introduction
On December 29, 1983, a complaint was filed against a number of defendants, including the instant petitioner, Donald Arbic. The complaint alleged a myriad of causes, but only those related to defendant Arbic need be discussed here. There were three counts related to this defendant: malicious prosecution, negligent prosecution, and intentional infliction of emotional distress.
The basic facts are not in dispute. Arbic, a Michigan State Trooper, was called to the scene of an alleged disturbance. Shortly before his arrival at the scene of the original complaint, Arbic and a fellow trooper encountered several youths, one of whom was visibly injured, who claimed to have been assaulted moments before. Proceeding with the boys to the scene of the original complaint, the officers met three men talking to another individ ual in a car. The car drove off and for the next hour or so the police officers conducted an investigation which caused the defendant Arbic to regard the three men as clear suspects in the assault on the boys. Subsequently, Arbic wrote a police report and submitted it to the Livingston County Prosecutor’s Office. Based upon that report, as well as upon its own investigation, which included an independent interview with one of the assault victims and his family, the prosecutor’s office authorized warrants against the three men. Two of those men later pled guilty.[ ] While criminal proceedings were initiated against plaintiff herein, he was acquitted after the close of prosecution’s proofs. Based upon these events, plaintiff filed his complaint.
Defendant Arbic now brings a motion for summary disposition based upon two lines of reasoning. He first argues that there is no genuine issue as to any material fact. Although defendant’s motion never cites MCR 2.116(0(10) and despite some confused mislabeling, it is clear from defendant’s motion and supporting brief that his first argument is based upon that authority. This court will therefore treat the motion as properly labeled. See Spectrum Manufacturing Corp v Bank of Lansing, 118 Mich App 25; 324 NW2d 523 (1982) (incorrectly labeled motion is considered as if correctly labeled, absent prejudice to the other party). Secondly, defendant bases his motion upon MCR 2.116(C)(7), arguing that plaintiff’s action is barred by immunity granted by law. As the following discussion will show, this court agrees with defendant’s argument and therefore grants summary disposition as to all counts.
In two recent cases the Michigan Court of Appeals concisely iterated the current case law on summary disposition, both in situations where no genuine issue of material fact is the basis of the motion and where governmental immunity is the disputed matter.
In Anderson v Kemper Ins Co, 128 Mich App 249, 252-253; 340 NW2d 87 (1983), the court said:
"Defendants’ motions also claimed there was no genuine dispute as to any material fact. GCR 1963, 117.2(3) [now MCR 2.116(0(10)]. Such a motion requires reference to any evidence in the case— depositions, affidavits, admissions, etc. — as well as the pleadings, to ascertain if there is any dispute as to any material fact [citation omitted]. The court should give the benefit of any reasonable doubt to the nonmoving party, being liberal in finding a genuine material issue [citation omitted]. The court must be satisfied that no factual development is possible which would support the non-moving party’s claim.”
Further, in Chivas v Koehler, 124 Mich App 195, 198; 333 NW2d 509 (1983),[ ] the Court of Appeals explained:
"A motion for summary judgment, GCR 1963, 117.2(1) [now MCR 2.116(C)(8)], is the proper way to raise the issue of governmental immunity in a tort action [citation omitted]. Further, when governmental immunity forms the basis of the motion, the burden is upon the plaintiff to plead facts in avoidance of immunity.
II. Intentional Inñiction of Emotional Distress
Count ix of plaintiff’s complaint alleges the intentional infliction of emotional distress by the defendant. As pointed out by defendant in his responsive brief, the current state of the law on this issue was enunciated in the 1976 case Warren v June’s Mobile Home Village & Sales, Inc, 66 Mich App 386, 390-391; 239 NW2d 380 (1976), quoting Restatement Torts, 2d § 46, comment d, p 73.
"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!’ ”
To date the Michigan courts have not seen fit to liberalize Warren’s strict standard and it remains the law in this state. See Holmes v Allstate Ins Co, 119 Mich App 710; 326 NW2d 616 (1982).[ ]
This court concludes that there can be no factual development inferrable from the record in this case to support a finding of intentional infliction of emotional distress. Nowhere in the record is there any factual allegation of "extreme and outrageous” behavior on defendant’s part.
III. Negligent Prosecution
As to the negligent prosecution count of plaintiffs complaint, defendant states that he could "find no cases supporting the existence of a cause of action for negligent prosecution.” Plaintiffs responsive brief cites a good deal of general negligence law, none of which deals with "negligent prosecution.” Although this court’s decision is based primarily upon the immunity question, a brief analysis of the negligence question may be helpful. This court believes that even if plaintiff had avoided immunity he would have been left with an anemic negligence argument at best.
A. Elements of Cause of Action
As pointed out by Professor Prosser in his well-known treatise on torts, Prosser & Keeton, Torts (5th ed), § 30, pp 164-165:
"The traditional formula for the elements necessary to a [negligence] cause of action may be stated briefly as follows:
"1. A duty or obligation, recognized by the law ....
"2. A failure on [defendant’s] part to conform to the standard required ....
"3. A reasonable close causal connection between the conduct and the resulting injury ....
"4. Actual loss or damage resulting to the interest of another.” (Footnotes omitted.)
On two of these elements plaintiiFs case seems weak.
First we have the matter of duty. As the Michigan courts have repeatedly stated:
"The threshold element in a negligence case is that there must exist a duty, or obligation, recognized by law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks. Holloway v Martin Oil Service, Inc, 79 Mich App 475; 262 NW2d 858 (1977). Unless defendant owes a duty to plaintiff, negligence analysis can proceed no further. Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977).” Cook v Bennett, 94 Mich App 93, 97-98; 288 NW2d 609 (1979).
The Cook case went on to point out that "[t]he existence of a duty is ordinarily a question for the trial court to decide as a matter of law.” Id., p 98.
Plaintiffs case is glaringly deficient on this point. This deficiency is characterized by defendant as a lack of case authority supporting a cause of action for negligent prosecution. More accurately, however, plaintiff has failed to show this court any authority for the proposition that defendant Arbic owed him a duty.
If there was a duty, what standard of care was to be used? It seems possible that, because the complained-of acts were alleged failures to include certain exculpatory facts in the subject incident report, some legal expert testimony might be required. Only thus could a lay jury make a determination of whether or not the inclusion of those additional facts might have exonerated plaintiff in the opinion of the prosecutor.
The second weakness of plaintiff’s claim is closely related to the first. Even if defendant had a legal duty to prepare his incident report in a certain way, that is, to include exculpatory facts as well as those indicative of plaintiff’s guilt, a careful reading of the incident report suggests that he did not breach that duty. (A detailed analysis of that incident report is included in the discussion of governmental immunity.)
This court concludes that no cause of action for negligent prosecution exists in this case. In any event, defendant clearly prevails on the immunity issue.
B. Governmental Immunity
As clearly stated in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633-634; 363 NW2d 641 (1984):
"Lower level officials, employees, and agents are immune from tort liability only when they are:
"1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;
"2) acting in good faith; and
"3) performing discretionary, as opposed to ministerial acts.” (Footnote omitted.)
The first of the three Ross elements is easily dispensed with. No one disputes the fact that Trooper Arbic was acting during the course of and within the scope of his employment. Thus the analysis quickly focuses on the remaining components of the Ross standard. Was the defendant acting in good faith and was he performing discretionary, rather than ministerial, activities.
While plaintiff clearly argues that Arbic lacked good faith, because, of course, such an allegation is essential if he is to prevail, he provides the court with no factual support for the proposition. As stated much earlier in this opinion, when governmental immunity forms the basis of a summary disposition motion, the burden is upon plaintiff to plead facts in avoidance of immunity. See Furness v Public Service Comm, 100 Mich App 365; 299 NW2d 35 (1980). Plaintiff argues that he has pled a plethora of facts that, if believed, might lead to the conclusion that Trooper Arbic failed to include certain exculpatory items in his report. Plaintiff has also made a good deal of the fact that defendant Arbic and the plaintiff had a "heated” argument on the night of the incident. Those two assertions, in and of themselves, however, do not amount to a factual allegation of bad faith on Arbic’s part. It is interesting to note that in his responsive brief defendant almost entirely avoids the issue of good faith and instead focuses on the third prong of Ross, the discretionary versus ministerial distinction, which brings us quite naturally to an analysis of that element.
Plaintiff argues that it is an issue of fact whether the defendant Arbic was engaged in a discretionary or a ministerial-operational task when preparing the incident report. This court disagrees. We must, of course, be mindful of the oft cited concurring opinion of Mr. Justice Souris in Durant v Stahlin, 375 Mich 628, 655; 135 NW2d 392 (1965), which iterated the following admonition against intemperate use of the summary disposition procedure by quoting Doehler Metal Furniture Co v United States, 149 F2d 130, 135 (CA 2, 1945):
"We take this occasion to suggest that trial judges should exercise great care in granting motions for summary judgment. A litigant has a right to a trial where there is the slightest doubt as to the facts, and a denial of that right is reviewable; but refusal to grant a summary judgment is not reviewable. Such a judgment, wisely used, is a praise-worthy time-saving device. But, although prompt dispatch of judicial business is a virtue, it is neither the sole nor the primary purpose for which courts have been established. Denial of a trial on disputed facts is worse than delay. . . . The district courts would do well to note that time has often been lost by reversals of summary judgments improperly entered.”
In the instant case, however, there is not the slightest doubt as to the facts.
On the issue of discretionary-decisional versus ministerial-operational we will simply accept all of the relevant facts pled by plaintiff as true. In fact, as regards this issue, defendant does not dispute those facts. The facts, quite simply put, are that defendant Arbic, on the day following the alleged assault, and after a second interview with the Nisbett boy, wrote a five-page, typewritten incident report. If we accept plaintiffs assertions as true, defendant included certain facts and excluded others. This incident report was then forwarded to the prosecutor’s office and it is argued that a criminal prosecution was instigated because of its contents.
The specific issue the court is faced with at this juncture is whether the way defendant Arbic filled out the incident report was discretionary-decisional or ministerial-operational. This is clearly a question of law which should be decided by the court. As the Court of Appeals said in the recent case of Tobias v Phelps, 144 Mich App 272, 281-82; 375 NW2d 365 (1985),[ ] "[w]e recognize that the distinction between discretionary and ministerial acts may pose great conceptual difficulties in cases in which the same defendant carried out his or her own discretionary determinations.” Surely the Court could not have intended such conceptually difficult legal questions to be the province of a lay factfinder.
An accurate shorthand summation of the Ross discretionary-ministerial issue was contained in the recent case of Rathbun v Starr Commonwealth for Boys, 145 Mich App 303, 309; 377 NW2d 872 (1985).[ ] There the Court said:
"In defining discretionary and ministerial acts, the Court transformed these words into the hyphenated 'discretionary-decisional’ and 'ministerial-operational’ form. If a particular activity involves personal deliberation, decision, and judgment, it will be considered a discretionary act for which an employee will be immune from tort liability. On the other hand, the execution or implementation of a decision is considered a ministerial act which, if performed in a tortious manner, will result in liability. [Ross, supra] 420 Mich 634-635.” [Emphasis added.]
It is this court’s determination that in filling out the incident report, based upon his investigation, and specifically in choosing which facts to include and which facts not to include, defendant Arbic was performing a discretionary-decisional activity.
If the gravamen of plaintiffs allegation were slightly different the result might have been otherwise. For instance, if it was alleged that the trooper, in the act of typing in the plaintiff’s name had gotten the wrong Mr. King or had alternatively put down the address for plaintiff and had thereby caused prosecution of the wrong person, that would constitute a ministerial act. This court, however, is of the opinion that the activity of writing the incident report was an activity which involved "personal deliberation, decision and judgment.” Were this court to rule otherwise, then every time a policeman was engaged, in good faith, in the act of completing a written report of his investigation he or she would be unnecessarily hampered by considerations of his/her own potential liability.
Because all of the Ross elements are present defendant is clearly entitled to governmental immunity on the nonintentional negligent prosecution charge. That leaves only an examination of the arguably "intentional” tort of malicious prosecution.
IV. Malicious Prosecution
A. Governmental Immunity
It must first be pointed out that this court could find no specific authority for the proposition that governmental immunity, as recently outlined by the Ross decision, may be applied to actions for malicious prosecution against police officers. There has, however, been a recent extension of governmental immunity to certain situations where intentional torts are alleged. Thus in Butler v City of Detroit, 149 Mich App 708, 715; 386 NW2d 645 (1986),[ ] the Court said, "it is recognized that actions by police officers which might normally constitute intentional torts are protected by governmental immunity if those actions are justified.” Therefore there is authority for an extension of governmental immunity to areas other than negligence.
While this court might be disposed to extend the doctrine thus, because there is no clear authority to do so, the remainder of this decision will outline a more traditional analysis of malicious prosecution. The result of each line of reasoning is the same and therefore the two determinations merely serve to bolster one another.
B. Analysis of Elements
We necessarily begin this final portion of our analysis by recognizing the disfavored status of this cause of action. The Michigan Supreme Court in the case of Renda v International Union, UAW, 366 Mich 58, 74; 114 NW2d 343 (1962), noted:
"In Rogers v Olds, 117 Mich 368, 371 [75 NW 933 (1898)], we stated that the action for malicious prosecution is strictly guarded’ and 'is never encouraged except in plain cases/ [Emphasis added.] This caution was again repeated in Roblyer v Hoyt, 343 Mich 431, 435 [72 NW2d 126 (1955)], when we held:
" 'Actions for malicious prosecution are regarded by law with jealousy and they ought not to be favored but managed with great caution.’ ”
At the same time, however, it is important to note that the Michigan courts, in developing this particular cause of action, have given great attention to the compelling and competing social interests involved. In Belt v Ritter, 385 Mich 402, 406; 189 NW2d 221 (1971), the Court noted:
"The First Restatement of Torts has accurately defined those interests:
" 'The restrictions which the rules stated in this Topic imposed upon a recovery for the wrongful prosecution of criminal proceedings represent an adjustment between two highly important social interests. The first is the interest of society in the efficient enforcement of the criminal law, which requires that private persons who aid in the enforcement of the law should be given an effective protection against the prejudice which is likely to arise from the termination of the prosecution in favor of the accused. The second is the interest which the individual citizen has in being protected against unjustifiable and oppressive litigation of criminal charges, which not only involve pecuniary loss but also distress and loss of reputation.’ ”
Thus, while remaining cognizant of the action’s disfavored status, this court is also aware that it represents, in the appropriate case, plaintiff’s only avenue of redress for the particular wrong alleged. Finally, therefore, we come to our analysis of plaintiff’s claim in the instant case.
"In order to sustain the charge of malicious prosecution, a plaintiff must prove that a criminal prosecution was instituted against him [by the defendant] which was terminated in his favor, that defendant had no probable cause for the prosecution, and that defendant acted from malicious motives.”[ ] Belt v Ritter, 18 Mich App 495, 502-503; 171 NW2d 581 (1969).
In the instant case it is undisputed that the criminal prosecution against plaintiff was dismissed before trial. Thus the prosecution "terminated in his favor.” The remaining elements, however, are eloquently disputed by the parties._
It appears to this court, after a great deal of thought and study has been given to the matter, that the answer herein lies in the resolution of a very focused issue. Defendant had invoked a traditional defense to malicious prosecution, namely, the defense of advice of counsel.
In cases similar to the one we are faced with here, that legal principle reduces to the following rule: "... the only situation in which an action for malicious prosecution would properly lie is where a police officer knowingly swears to false facts in a complaint, without which there is no probable cause.” Belt v Ritter, 18 Mich App 503. The argument supported by that rule is sometimes characterized as an attack on the first element of the cause of action, that defendant instituted the previous prosecution. Alternatively, there is a good deal of case literature which views the defense as an attack on the "lack of probable cause” prong. This Court is in agreement with the Court of Appeals decision in Wilson v Yono, 65 Mich App 441, 444 [237 NW2d 494] (1975), which said, "[although the cases seem to talk in terms of probable cause, it is clear that the rule is based upon the idea that defendant has not in fact instituted the prosecution.” (Emphasis added.) See also Rivers v Ex-Cell-O Corp, 100 Mich App 824, 832-833; 300 NW2d 420 (1980).
In the final analysis then, we are brought back, quite conveniently, to a question which has already been addressed in this opinion, albeit in slightly different form. The question is this: Is there any evidence in the record, as it exists, which would give rise to the inference that defendant Arbic knowingly included false facts in his incident report, without which the prosecutor could not have concluded there was probable cause? The answer is clearly no. This question is a slightly different form of the one answered earlier regarding defendant’s lack of good faith. It has never been pled or argued by plaintiff that defendant did anything worse than fail to include certain arguably exculpatory items. In fact, those items which plaintiff has consistently labeled as "exculpatory” (i.e. that it was dark, that the victim only saw part of his assailant’s legs, etc.), are not really exculpatory in nature. An exculpatory fact would be something such as an eye witness who saw plaintiff elsewhere or the fact that plaintiff had a broken ankle on the night in question. See e.g., Rivers, supra, pp 832-833. While the distinction is concededly a fine one, plaintiff is really arguing certain ameliorating circumstances, not exculpatory facts. This court has determined that it would place too much of a burden upon investigating police officers to require that they include all possibly mitigating items in their police reports in order to avoid potential liability.
The question simply put is, did Officer Arbic fill out a fair incident report? The answer is yes. Earlier the Court had difficulty in locating indicia of a lack of good faith to avoid immunity. Similarly, there has been no adequate showing of knowing bias in defendant’s reporting which would give rise to a legitimate cause of action for malicious prosecution.
CONCLUSION
Summary disposition is granted to defendant upon all remaining counts. Defendant shall prepare an order in conformity with this opinion and submit it in accordance with MCR 2.602(B).
Affirmed.
The other two men actually pled nolo contendere.
The exact court rule authority for this principle since adoption of the new 1985 court rules is MCR 2.116(C)(7). As pointed out in MCR 2.116(G)(5), "[t]he affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered when the motion is based on subrule (C)(l)-(7) or (10).”
Reversed and remanded on other grounds, 422 Mich 898 (1985).
Leave denied, 417 Mich 1018 (1983).
Leave denied, 424 Mich 859 (1985).
Leave denied, 424 Mich 908 (1986).
Leave denied, 426 Mich 867 (1986).
See Prosser, Torts (4th ed), § 119, p 385. | [
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Smith, J.
The plaintiff before us was injured in a fall suffered on the public sidewalk in front of the defendants’ property. It happened in February and the walk was not free of snow and ice.
Plaintiff Joseph Weider was a tenant in the defendants’ apartment building at 2548 Second avenue' in Detroit. It was his habit to leave his apartment about 6 a.m. every weekday morning to catch a bus-to work.
On Monday, February 14,1955, two inches of snow had fallen in Detroit. We will assume that defendants’ caretaker, Mrs. Crum, as was her custom,, shoveled away the accumulation on the public walk in front of the apartment house and on the private-sidewalk leading up to the building.
There was no snow the next day, Tuesday. However, by the time Mr. Weider went to work on Wednesday morning, February 16, 1955, another light snowfall was descending. After plaintiff reached the main sidewalk he slipped on a patch of snow and ice that had formed at the base of a 3- or 4-inch “heave” in the paving. (This hump in the walk had been there, to plaintiff’s knowledge, ever since he-had lived in the apartment house.) The resultant fall broke Mr. Weider’s hip, permanently disabling him. The jury awarded $92,000 damages. The trial court granted defendants’ motion for judgment non obstante veredicto and plaintiff is before us on a general appeal. Defendants have cross-appealed, in part, with respect to the instructions to the jury.
The primary issue on appeal may well be put in the terms employed in appellant’s brief:
“Appellant in this action relies on the theory that the appellees, in their act of shoveling the sidewalk at the heave added an unnatural hazard, one which was over and above and beyond the natural hazard of the free fall of the snow and the ice. Appellant believes that once the landowner starts to remove the snow from the sidewalk regardless of whether or not he is under a duty to do so, he is bound to do so in a careful manner so as not to add any additional hazard over and beyond the natural hazard of the free fall of the snow and the ice.”
The theory relied upon, then, is one of increase of hazard. The sine qua non of this doctrine is that a new element of danger, not theretofore present, be introduced by the acts of the defendants. Clear expression of this requirement is found in numerous •cases. Thus, in Taggart v. Bouldin, 111 NJL 464, 468 (168 A 570), the snow which had been banked on •either side of the sidewalk by defendant’s shoveling, later melted and froze on the walk. In upholding the lower court’s nonsuit of plaintiff the court said:
“The action of the defendant, in having the sidewalk shoveled off, introduced no new element of danger; rather the opposite resulted and the danger was lessened. * * * Since this be so, to hold a property owner answerable in damages, for injuries received because an effort is made to keep the sidewalk clear and to reduce the danger to pedestrians, would result in a hardship and an injustice.”
In an almost identical situation in Illinois, reported in Riccitelli v. Sternfeld, 349 Ill App 63, 66, 67 (109 NE2d 921), the court reversed a jury verdict for plaintiff, saying in part :
“Heavy snowfalls create emergency conditions and a generally hazardous situation throughout this city. There have been occasions in which the entire citi.zenry has been mobilized to make paths along sidewalks and to clear streets for traffic. * * * In one sense, a dangerous situation is created, but much less dangerous than would be created if no one undertook to do anything. Plaintiff argues that if defendant had not undertaken to clear a path and if his employees had not piled up the snow, conditions would have been better than they were at the time of the accident. This is conjectural. The general assumption is that the industry displayed by citizens removing snow after a snowfall is desirable, if not necessary. The water which froze and produced the-lump of ice on which plaintiff fell, came from natural causes. It cannot be said to have arisen from anything defendant did, other than removing the snow obstructing his driveway and making a path on the-sidewalk for pedestrians. That in so doing he may have piled some snow from the driveway onto the piles banked along the walk is not the type of act upon, which liability in a case of this character may be predicated.”
See, also, Mahoney v. Perreault (1931), 275 Mass 251 (175 NE 467).
In Herrick v. Grand Union Co. (1956), 1 App Div 2d 911 (149 NYS2d 682), the defendant, in cleaning-the walk after passing pedestrians had packed down much of the snow, was able only to remove the loose snow on top. The court, per curiam (in upholding" an involuntary nonsuit), said in part:
“The rule is that a failure to get all the snow and ice off the walk is not negligence. * * * The claim of increased hazard in the case before us is not supported by substantial evidence on the record viewed as a whole. It is not shown that the shoveling or scraping of the loose snow actually made the existing mass of ice and snow any more slippery or hazardous than it had been. Nor is it established by any definite factual observation what the result was of the loose-snow dropping off as it was shoveled or that this actually affected or increased the existing hazard.”'
The case before us is clearly distinguishable from such cases as Betts v. Carpenter, 239 Mich 260, where-ice and water did not get on the sidewalk from natural causes but “were turned onto a public sidewalk by artificial means,” and Woodley v. Lancaster, 307 Mich 473, involving a similar situation.
The requirement, as above stated, being that the ■defendants’ act of attempted removal of the snow must have increased the hazard, must have introduced a new element of danger not theretofore present, we turn to the proofs for exposition thereof. Plaintiff himself testified that in his experience in clearing snow off walks “when it had a heave or a crack in it,” that he “couldn’t get that snow off. * * * It was solid on account of the cracks and the heave. You couldn’t shovel there, and then, the ■cracks — cracked spot, it is piled more on top. You just can’t shovel over top.” Eva Crum testified that the heave in the sidewalk presented difficulties in cleaning it of snow and ice and plaintiff testified that there were “blotches” of snow remaining on Monday, February 14th. Plaintiff also testified that ice had .accumulated at the “heave,” which was where he fell.
In none of this is there any evidence whatever that the attempted cleaning of the sidewalk increased the hazards of travel thereon. Viewing the testimony in the light most favorable to plaintiff it shows merely that he fell on a public sidewalk many hours after an attempted cleaning of one fall of snow and during the course of a second. The fact of ice on a public ■sidewalk at this time and under these circumstances does not prove, or even support a reasonable inference, that the attempted cleaning itself, as distinguished from the normal operation of the forces of nature upon this sidewalk, or the effects of travel thereon by pedestrians, created the ice patch at the crack and thus increased normal hazards, or caused thereat an artificial accumulation of ice.
The holding in the case of Golub v. City of New York, 201 Misc 866, 868, 869 (112 NYS2d 161, 163), is particularly appropriate to the facts before us:
“The precise issue raised in this case is whether an abutting owner is liable for an ice condition remaining or arising after a snow and ice removal op eration, without a showing that that ice condition, assuming it to he hazardous, was caused directly or indirectly by defendant through some affirmative act or omission.
“None of the authorities examined by the court goes that far. In each case where plaintiff has been permitted to recover against an abutting owner, the ice condition following snow and ice removal was either directly or indirectly the result of an act or omission by the abutting owner. On the other hand mere incompleteness of snow.or ice removal, or unexplained presence of ice or snow after snow or ice-removal, have resulted in the discharge of the defendant as a matter of law. # * *
“In the instant case there is even a graver hiatus-in plaintiff’s proof. As indicated, there was no evidence that the ice patch was residual to an incomplete-cleaning operation or that it was placed there, directly or indirectly, by defendant, let alone that it had been altered by defendant to create a dangerous condition.”
Under the view we have taken of the case there is no need to discuss additional issues raised by both parties.
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Voelker, and Kavanagh, JJ., concurred.
There is no direct testimony that on that particular day Mrs. Crum or anyone else eonneeted with the defendants did the shoveling. The lower court’s opinion fairly summarizes the testimony. “She did not remember whether she had done it after the snowfall on February 14th and 15th. Maybe her husband did it.” | [
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Kavanagh, J.
Plaintiff, a resident of the township of Flint, Genesee county, Michigan, brought an action in the circuit court for that county to recover for personal injuries received hy him on July 31, 1954, while standing at the left side of his Chevrolet automobile, which was parked in a regularly provided parking space on the east side of Harrison street, a public highway in the city of Flint, said parking space being directly north of the intersection of said Harrison street with East Second street. , .. ,.
It is. alleged that as plaintiff was standing on the left side of his automobile, closing the window in the left door thereof, defendant carelessly and negligently, and without due observation, attempted to back his automobile into the parking space already occupied by plaintiff’s automobile, and, in doing so, the automobile of defendant struck the door of plaintiff’s automobile, catching plaintiff’s hand between the door and doorpost thereof, painfully injuring plaintiff, and damaging plaintiff’s automobile. Plaintiff alleges that this negligence of defendant was the proximate cause of the accident and that plaintiff was free from any contributory negligence.
The testimony of plaintiff was to the extent that he saw an automobile back out of a parking space in front of the Detroit and Northern Savings & Loan Association, and when the automobile had backed out he pulled in; that it was the first parking space north of the corner on the east side of Harrison street; that approximately 15 feet ahead of him was defendant’s double-parked automobile, roughly from 3 to 4 feet from the automobiles that were parked along the curb and parallel to the parked cars; that defendant’s car was just standing there when plaintiff pulled into the parking space; that plaintiff’s wife got out of the automobile on the curb side and he got out on the street side; that he had his door partly open, and had reached inside to roll the glass up when defendant backed his automobile into the door of plaintiff’s automobile. Plaintiff further testified that defendant was backing at the rate of approximately 3 to 5 miles per hour; that he did not observe the car backing up until his wife, who was standing on the curb on the opposite side, shouted “look out;” that he looked up at that moment and defendant’s car was right on him. Testimony of plaintiff’s wife was substantially the same.
Defendant testified that he had taken his wife downtown shopping on this Saturday morning and had let his wife out on Harrison street just south of the intersection where the accident occurred, and drove across the intersection waiting for this parking space. He observed that a lady in an automobile was backing out of a parking space so he drove by her in order to back into the parking space. He testified that he could not stop behind her because he would have blocked traffic on the other cross street. He pulled a car length beyond her so that •she would have enough room to get out, and about 2 feet in front of him, when he came to a stop waiting for the lady to leave the parking space, was a postal truck. He testified further that the lady backed out and went north on Harrison street past him; that plaintiff’s automobile pulled immediately into the parking space she had vacated; that he saw he couldn’t go forward any more because of the postal truck; that he gestured to plaintiff that he was waiting for the parking space; that he then looked in his automobile mirror and plaintiff was not in sight; that he looked to his left to see if there was any moving traffic going north, and then backed up, and, in so doing, backed into the door ■of plaintiff’s automobile. He testified that he did not see plaintiff get out of the automobile.
The case was submitted to a jury, and the jury returned a verdict of no cause for action. Plaintiff then filed a motion for new trial, which the trial ■court denied.
Plaintiff appeals to this Court, contending 4 ■things: (1) The question of contributory negligence was not properly presented to the jury as an issue ■of fact in absence of dispute of facts. (2) The verdict of the jury was against the preponderance of the evidence. (3) The trial court erred in refusing to instruct the jury as requested by plaintiff. (4) The trial court erred in denying plaintiff’s motion for a new trial.
Plaintiff, in arguing that the question of coiitrib-. utory negligence was not properly presented to the jury as an issue of fact in absence of dispute of facts, relies upon several cases, all of which are distinguishable from the instant case.
Jenkins v. Bentley, 277 Mich 81, was an action brought for injuries to an 11-year-old boy, who, when injured, was leailing against a tree located 27-inches from the curb of the'street. The accident-happened while the driver of the truck, when turning around in the street, had backed part way, stopped, cramped his front wheels as if to proceed forward, and then suddenly, with a jerk, backed against the boy. Here the boy had no legal obligation to anticipate that defendants’ driver would suddenly back the rear of the truck over the curb.
In the Jenkins Case the case was tried before a court without a jury. The Court there clearly held as a matter of fact, not of law, that the plaintiff was not guilty of contributory negligence.
In the case of Kinsler v. Simpson, 257 Mich 7, relied upon by plaintiff, the contention was that there was no negligence established for which defendants were responsible. The Court held that there was evidence from which the trial judge could, as a matter of fact, not law,'find defendants negligent.
The third case relied upon by plaintiff is that of Roach v. Petrequin, 234 Mich 551. Plaintiff in that casé, Margaret Roach, brought the action by her nest friend. She was a 4-year-old child. No question of contributory negligence was involved.
Plaintiff further lies upon Marth v. Lambert, 290 Mich 557, 565, stressing 3 quotations therefrom. Tlie first from-5-6 Huddy, Law of Automobiles (5th ed), § 471, pp 593, 594, as follows:
“'When one is standing in the street in a place where he has a right to be, or is walking along the highway, he can properly assume that the driver of a motor vehicle will not run him down, but will avoid contact with him. And he may also assume that the driver’of an approaching machine will give a signal of warning so that an accident may be avoided.” (See 5-6 Huddy, Encyclopedia of Automobile Law [9th ed], §79, pp 132, 133.)
The second, a quote by Justice Edward M. Sharpe from Tio v. Molter, 262 Mich 655, 661, as follows:
“Pedestrians in a public highway have a right to assume that the driver of an automobile will use ordinary care for their protection.”
The third, a further quote by Justice Sharpe from Pearce v. Rodell, 283 Mich 19, 34, 35, as follows:
“A pedestrian has a right to rely upon the presumption the driver of an automobile will exercise due care and is not, as a matter of law, required to look back for approaching vehicles.”
The above quotations were in support of the contention of Justice Sharpe that after plaintiff alighted from his car to examine the gasoline tank, he then stood in the same relationship to traffic as any other pedestrian. These quotations were not in support of a position that in so doing such an individual had no obligation to exercise reasonable care under the particular circumstances.
In the case of Tio v. Molter, supra, at p 661, Justice North said:
“Assuming that plaintiff was walking in an easterly direction upon the southerly part of the paved portion of the highway, which he had a right to do, he was bound to exercise reasonable care for Ms own safety.”
The statement used by plaintiff in this case from Tio v. Molter, supra, was taken from People v. Campbell (syllabus), 237 Mich 424, and reads in full as follows:
“Pedestrians in a public highway have a right to assume that the driver of an automobile will use ordinary care for their protection, but they may not rest content on that assumption and take no care for their own safety.”
Justice North, in the Tio v. Molter Case, supra, p 661, quoted 5-6 Huddy, Encyclopedia Of Automobile Law (9th ed), § 84, p 146, as follows:
“ ‘One traveling along or crossing a street or highway is not necessarily required to look back for the approach of vehicles; if struck by an auto coming behind him, his negligence presents a jury question.’ ”
In the case of Hakkers v. Hansen, 337 Mich 620, 623, 624, Chief Justice Dethmers, in discussing a request to charge, said:
“Plaintiff next assigns error for failure to give requests to charge. Unfortunately, he fails to specify which of his requests the court erroneously failed to give. He contends that the court should have charged that as he stood alongside his parked automobile he was under no duty to look back to see defendants’ approaching automobile traveling in a lane where it normally had a right to be, citing such cases as Kirl v. Zinner, 274 Mich 331; Graham v. Evening Press Company, 135 Mich 298; Tio v. Molter, 262 Mich 655. These and similar cases hold that under the circumstances presented therein, when plaintiff is traveling on a street or highway in a place where he has a right to be, his failure to look back for the approach of vehicles coming from behind him does not render him gnilty of contributory negligence as a matter of law, but the question of his negligence is one of fact for the jury. The difference is obvious between that rule and the one, in effect, contended for by plaintiff, namely, that, as a matter of law, he had no duty to look back. A charge of that tenor, if requested, would have been erroneous.”
Plaintiff in this case has only partially quoted the statements of law involved. Korstange v. Kroeze, 261 Mich 298; Pearce v. Rodell, supra; and Warwick v. Blackney, 272 Mich 231, contain a full and correct statement of the law in this regard, to the effect that while pedestrians have a right to assume that the driver of an automobile will use ordinary care for their protection, they may not rest content on that assumption and take no care for their own safety, but must exercise that degree of care that a reasonable, prudent person would use under the same or similar circumstances.
It would appear that there was testimony from which the jury might find that reasonable, men would differ as to whether plaintiff’s failure to look after alighting from his car until such time as defendant’s automobile was on top of him was the exercise of reasonable care under the circumstances, particularly in view of the fact that plaintiff testified as follows:
“He did not start slowly and accelerate, but as I remember it, he gunned it at a very rapid and vicious pace.”
If plaintiff heard defendant gunning his automobile, backing it at a rapid and vicious pace, reasonable people might infer that he had an obligation to look and see if the car was coming in his direction and protect himself.
It would appear that there was a question of fact which was properly submitted to the jury.
Were plaintiff’s actions those of an ordinary careful and prudent man under like circumstances? Can the minds of reasonable men differ in answering this question? If so, the evidence should have been submitted to the jury. Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich 99; Adams v. Canfield, 263 Mich 666; Davis v. New York Central R. Co., 348 Mich 262.
The other 3 questions raised by plaintiff in his brief, we think, have been answered in connection with the first proposition. However, as to the third •question that the trial court erred in refusing to instruct the jury as requested -by plaintiff, a reading of the complete charge seems to indicate that it is a fair and reasonable one and contains all of the elements necessary to present the theory of both plaintiff’s and defendant’s case - and to 'properly inform the jury of their duties and the law applicable to the matter.
The charge requested by plaintiff that he was not guilty of contributory negligence in alighting from the left side of his automobile, that he could do so in safety, and that he was not bound to anticipate the possibility of defendant backing his automobile into the automobile of plaintiff, was not a proper request to charge in that it did not contain a full, complete, and accurate statement of the law, but only a partial statement of law, stating the first half of the rule relating to the rights of plaintiff under the circumstances, but neglecting the last half concerning plaintiff’s duties. The charge of the trial court appears to have fairly presented both portions of the duties of plaintiff. A trial court need not give a request to charge which is not an accurate statement of the law on a particular issue. Moss v. Shreve, 278 Mich 665; Elias v. Hess, 327 Mich 323. It would appear that there was no error in neglecting to instruct the jury as requested hy plaintiff.
The lower court properly denied plaintiff’s motion for a new trial.
Affirmed. Costs to defendant.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Voelker, JJ., concurred.
It is to be noted that this case was tried in the lower court prior to the adoption of section 3a of a Court Rule No 23 by this Court, effective June 1, 1958. | [
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Voelker, J.
The city of Harper Woods needed the land of the 4 sets of appellees for public purposes and by appropriate action it proceeded to condemn it. After the city’s petition therefor was filed the landowners and the appellant, David Blake, a real- estate man, entered into 4 written..so-called option agreements (prepared on behalf of Blake) whereby Blake agreed to purchase the Ehlers and Seyferth properties each for the sum of $15,000; the Ehlen property for $7,500; and the O’Hern property for $13,500. These documents- contained some rather unusual provisions. The Ehlers and Seyferth options provided, in effect, that if the owners sold the optioned property elsewhere during the life of the options they and Blake would split any sale price over $10,000 fifty-fifty; in the Ehlen option the figure was $5,000; in the O’Hern option the figure was $9,000. Each option also contained this rather strange clause: “In case owners would choose to sell for less than option figures, it is mutually understood that all moneys received in the sale of the herein described land will be divided in the same proportion as it is herein provided for at full sale price.”
In due course the circuit court condemnation jury awarded the Ehlers and Seyferths each $9,500; the Ehlens $3,800; and the O’Herns $5,700. The award also recited that appellant Blake and his wife and his agent Newkirk were parties in interest along with the respective owners. Thereafter Blake demanded of appellees 1/6 of each award based upon his interpretation of the option. The appellees refused to pay, contending that since the respective jury awards were each for an amount less than the base figure in the options provided, that Blake had nothing coming.
Prior to the jury awards the appellant had unsuccessfully sought to persuade the appellees to sign amendments to the options calling for lower base figures. After the award the circuit judge on motion of appellees amended the verdict of the condemnation jury by ordering the striking of the names of Blake aud his wife and agent as parties in interest. Blake appeals here, claiming, among other things, that the court misinterpreted the option agreement, erred in refusing to admit parol testimony to explain it, and, further, that in any event it lacked authority to amend the jury award.
The trial court apparently proceeded on the theory that the base figures in the respective options were controlling, and that since the jury actually awarded less than those respective amounts in each case, Blake had no interest in the awards. While we are not inclined to disagree with this result, we think there was an even briefer answer. The options referred to property that might he “sold” by appellees. It was never “sold” by them, nor did they ever “choose to sell” it; it was taken away from them by condemnation; therefore Blake under the terms of his own agreement, as drawn by him, never had any interest in the proceeds. It would follow that he had no standing below nor has he any here to question the right of the circuit court to amend the jury verdict to conform with the true situation. Affirmed, with costs to appellees.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred. | [
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Kavanagh, J.
Plaintiff brought this action in the circuit court under the death act (CL 1948, § 691.581 et seq. [Stat Ann §27.711 et seep]) to recover for funeral and burial expenses and other pecuniary injuries resulting from such death.
Plaintiff’s decedent was the 18-year-old son of plaintiff. He was single and lived on the family farm with plaintiff, his widowed mother, and another brother, Ronald, 20 years of age. Plaintiff’s decedent had a regular job at the Bay City Bank earning $75 semimonthly. After coming home from the bank, it was usual for the deceased, from the beginning of the crop season until fall, at least, to have his supper and then work in and about the farm from approximately 6 to 10 p.m.
The income from the farm was plaintiff’s only-means of income, and the work of the 2 sons, it is claimed by plaintiff, produced the income from the farm which supported her.
Deceased had been regularly contributing his services about the farm since the age 11 or 12. After he graduated from high school in June he stayed on the farm with his mother until October when the close of the planting and harvesting season was reached. Deceased then sought employment in the city. He worked at different positions until he obtained employment with the Bay City Bank. He continued to live at home with his mother, paid no room or board, and his mother took care of his washing. Deceased, without objection from plaintiff, retained all of his earnings, except he paid plaintiff $50 semimonthly to repay $1,200 loaned to him by his mother for the purpose of purchasing an automobile.
Plaintiff was the sole owner of an 80-acre farm, all tillable land, and completely equipped with farm machinery, including 2 tractors and all of the necessary tools for the proper cultivation of the farm. In addition she leased 40 acres of a neighbor’s farm.
Plaintiff mother testified that at the time her son began working in the city she advised him that she did not need money, that he could keep his earnings, and that this situation was true up to the time of his death.
On June 3, 1955, plaintiff’s decedent and a friend went to defendant’s showroom to see the new Mercury automobiles. Defendant’s salesman offered to demonstrate a new automobile to plaintiff’s decedent and his friend. In attempting to show them how quickly the automobile could pick up speed from a standing start, he began with a squeal of tires and accelerated the automobile until it reached speeds up to 100 miles per hour within a mile. The automobile failed to negotiate a sharp curve, smashed through a guardrail, overturning and instantly killing plaintiff’s decedent.
Plaintiff was 57 years of age, weighed 138 pounds, and testified at the time of trial in circuit court that she was in good health and had been in good health for a number of years.
It was plaintiff’s contention that the income from the farm was her only means of income and that the 2 sons worked the farm to help support her. It was plaintiff’s further contention that she needed these services and contributions toward her support and that she had no other means of support.
When plaintiff offered to prove her pecuniary injury and loss beyond age 21 of deceased, the trial judge refused to permit such evidence on the ground that it was contrary to Michigan layr. Plaintiff, through her attorney, made a statement that she desired to offer proof of the pecuniary injury and loss beyond the time deceased would have been 21 years of age. However, no separate record of this proof was made, and no request for the opportunity to make such record was submitted. The issue of damages was limited to the minority of deceased when submitted to the jury. Plaintiff had verdict for $4,200 on this issue.
Under the Court rule plaintiff filed motion for a partial new trial, limited to damages beyond the 21st year of deceased for the benefit of the dependent parent. The trial court filed a written opinion, and subsequently entered an order denying said partial new trial.
Appellant appeals to this Court, asking partial new trial, limited to damages for the dependent parent subsequent to the time the plaintiff’s decedent would have been 21 years of age.
It is the contention of plaintiff that the trial court erred in refusing to permit testimony to be submitted to the jury which would involve presentation of damages for the death of a minor beyond age 21 years, where the following elements of proof appeared in the evidence:
“1. A dependent parent in need of - support.
“2. A minor child with an established earning capacity.
“3. Such minor child making customary contributions of services or moneys toward the support of such dependent parent at the time of death.”
Defendant contends that it is not the law in Michigan that recovery can be had under the circumstances mentioned, and that the evidence produced with reference to the situation at the time of plaintiff’s decedent’s death would not support such a contention, and the offer of proofs would not so support.
This Court is in no position to pass upon the admissibility of evidence which might have been offered. It is in no position to know what the evidence would actually have been since no separate record was made, since no request was made to make a separate record in the circuit court, and no explanation or justification for failing to do so is presently offered.
Under Court Rule No 37, § 15 (1945), it was plaintiff’s right and duty, if she cared to preserve questions for appeal, not only to offer the evidence, but also to make a separate'record in regard to the material facts so that this Court might know whether the material was admissible, and whether the proofs would have been sufficient to justify the submitting of the question plaintiff desired to the jury. ■ This court rule makes applicable to jury law cases the substance of the statute applying to chancery cases (CL 1948,■§ 617.5 [Stat Ann- § 27.853]).
In the case of Gilchrist v. Gilchrist, 333 Mich. 275, 282, this Court made reference to a quotation from Counihan v. Hayes, 246 Mich 390, 392, 393, in Kerns v. Kerns, 303 Mich 23, 33, where it was said:
“ ‘Counsel should have taken such testimony under the provisions of CL 1915, § 12493, or at least have asked the court for leave to do so. It was not sufficient to state upon the record what the testimony would show and then rely upon an exception to its exclusion. Had the practice been followed we would now have such testimony, and, if material and competent, could use it. One purpose of the statute is to prevent hearing chancery appeals piecemeal, and we decline to reverse the decree for the reason mentioned, and to remand the case to take further evidence.’ ”
The Court there also cited the case of Gross v. Housner, 322 Mich 448, and then said (p 283):
“Defendant made no effort to make a special record, nor was she denied the opportunity to make one. Under the circumstances, defendant is not in a position to claim error in regard to materiality or relevancy of testimony of which no special record was made.”
The same question was before this Court in Serbinoff v. Dukas, 348 Mich 69. On page 74 Justice Black said as follows:
“In the absence of such eminently proper practice as reflected in the cited decisions, we are unable to appraise for evidentiary worth that which, defendant says the chancellor refused to receive.”
Justice Black then quotes from the Kerns Case, above mentioned, and refers to most of the same citations we have heretofore given.
Section 15 of Court Rule No 37 (1945) is but declaratory of the common-law practice.
In the law case of Reynolds v. Continental Insurance Co., 36 Mich 131, 144, Justice Graves said:
“In submitting propositions of proof it is requisite that counsel should be distinct and clear. A proposition should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling if an adverse one.”
In a later law case, Campbell v. Brown, 276 Mich 449, 456, Justice Bushnell said:
“The better practice would be to excuse the jury and in its absence permit counsel to make an offer of proof, thereby including in the record sufficient information to permit a review of the propriety of the court’s ruling. See Scripps v. Reilly, 38 Mich 10, and In re Fine’s Estate, 249 Mich 391.”
Section 15 of Court Bule No 37, applicable as it is to law jury cases, and the statute (CL 1948, § 617.5 [Stat Ann § 27.853]), applicable as it is to chancery cases, were each adopted in furtherance of a common purpose, that of providing the trial judge with an accurate and informative picture of facts to be offered or sworn to, thus to enable more intelligent rulings below and here upon evidentiary as well as substantive questions.
In the instant case the offer of proof was not sufficient for either the trial court or this Court to pass upon its admissibility.
The Court has not considered the question of whether a dependent parent in need of support can recover in a death action where the child has an established income and a record of contributing to the support of the parent for a period after deceased is 21 years of age.
Tbe appeal for a reversal of the order denying a partial new trial is denied. The judgment of the trial court is affirmed, with costs to defendant.
Dethmbrs, C. J., and Carr, Kelly, Smith, Black, Edwards, and Voelker, JJ., concurred.
See Court Rule.No 47, § 2 (1945).—Reporter. | [
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] |
Fellows, C. J.
This case was tried by the court without a jury. No points of law were presented. No request for finding of facts was filed. Judgment was rendered for the plaintiff March 18, 1921. The trial judge states that several weeks later he was requested to file written findings of law and facts. This probably was an oral request as no request of such character was filed. The trial judge complied with such request and findings were filed May 6th. No exceptions to them were filed and no extension of time was asked for or granted in which, to file them or to propose amendments to them. July 6th without leave of the court proposed amendments were filed. In the main they were denied August 8th and on August 10th exceptions to the refusal to amend were filed and exceptions to certain findings were included. This was nearly five months after the judgment was entered. There is no assignment of error that the findings do not support the judgment or that they are against the weight of the evidence.
In this court counsel for the appellee insists that inasmuch as there has been no compliance with the provisions of Circuit Court Rule No. 45 and the statute (3 Comp. Laws 1915, § 12587), there is nothing before us for review. This court has in numerous cases pointed out the necessity of following the required practice in order to save questions for review in this court. Among the recent cases, see Silfver v. Daenzer, 167 Mich. 362; Cascarelli v. Railroad Co., 202 Mich. 304; Engel v. Tate, 203 Mich. 679; Messer v. Dornbos, 210 Mich. 46; Northern Assurance Co. v. Houghton Circuit Judge, 169 Mich. 238, and especially Federal Audit Co. v. Sawyer, 196 Mich. 566, where earlier authorities are cited and quoted from. As the rule fixes the requirements prerequisite to a review of the case in this court, our jurisdiction is dependent on a substantial compliance with such requirements. In the instant ease there has not been a substantial compliance with the rule and our attention has been challenged to the failure. Under these circumstances, we have no other duty than to affirm the judgment.
Wiest, Clark, Sharpe, Moore, and Steere, JJ., concurred. Bird, J., did not sit.
The late Justice Stone took no part in this decision. | [
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Bird, J.
Defendant was tried and convicted of the offense of assault with intent to commit rape on one Margaret Johnson, a young married woman, living in the township of Moorland, Muskegon county. The complaining witness testified that defendant called at her house and found her husband away from home. They talked at the door a moment, when defendant asked to see her young baby. He went in, grabbed her and tried to kiss her, and later to have intercourse with her. Defendant concedes he was at the house and that .he made some advances which, as he thought, were ' apparently well received, but he insists that, when she objected to his going farther, he desisted.
Mrs. Sarah Ardeline was sworn as a witness for the people. After testifying that she knew defendant and that he had dinner at her home on the day in question, the prosecutor asked her the following question:
“Q. Was there anything occurred there at your house that day with reference to this daughter of yours?
“Mr. Turner: Now, wait a minute.
“A. I am not on. Mr. Johnson’s trial.
“Q. I object to this as improper.
“Mr. Jackson: If the court please, we are handicapped with the jury present.”
Whereupon the court excused the jury and the matter was discussed by counsel. The jury was then called back and the witness excused, and no comment was made by the court. It is urged that this was error, even though the¡ question was left unanswered. We are inclined to agree with this contention. Keeping in mind that defendant was on trial for attempted rape the question was a live wire which went directly to defendant’s proneness in such affairs. The question was well calculated to, and probably did, leave in the minds of the jurors the impression that the prosecutor had knowledge that defendant had made an effort on the same day to fuss with or take advantage of her young daughter. Even though there were some basis for believing that defendant had done so, the fact was not admissible to show the guilt of defendant under the charge on which he was being tried. It was an attempt to make evidence of a distinct and similar offense. It is true, the question was not answered, but it was one of those questions which, coming from a public prosecutor, had its weight, and would ordinarily leave a strong impression upon a jury. The question was improper, inadmissible and harmful to defendant.
The following portion of the prosecutor’s argument is complained of as error:
“If this man’s story is true, let me ask you where is this man, Lane? He lives in that county; he lives out there by Ravenna. He told you where he lived. He told you about the times that Lane went with him. Where is he?
“Mr'. Turner: I desire to take an exception to this line of argument as being improper.
“The Court: The exception will be noted.
“Mr. Jackson: Where is the man that was with him that day? He could have brought him in here to corroborate him. He tells you all about him. Where is he? Where is Doe, Willette?
“Mr. Turner: I desire, if the court please, to take an exception to that line of argument, it has nothing to do with this case whatever.
“The Court: All right.
“Mr. Jackson: Could they put a dollar mark on your wife’s honor? Could they? Could anybody stamp an ‘S’ with two big, long lines through it, on your wife’s honor, or on your honor? I will say they couldn’t. I’ve got a picture of what this man here, who made that same argument here, would do if the same thing happened in his home, or in his daughter’s home, or in any one of his three children’s home.
“Mr. Turner: I take an exception to that argument as not proper argument, it has been passed upon by the Supreme Court.
“The Court: Proceed.”
The first complaint is that it was error to criticize defendant for not producing Lane and Dr. Willette. I am not impressed that this was error. A question akin to this was discussed in People v. Schultz, 210 Mich. 297. The argument of the prosecutor was held error in that case, but I think it must be said to have been on the ground that the witnesses referred to were jointly indicted with defendant, although they were not being tried with him. The statute, 3 Comp. Laws 1915, § 12552, protects the defendant from comment or criticism for not taking the witness stand, but the protection is not extended to witnesses. If a witness knows facts which will be helpful to defendant in making his defense, and he is competent and within the reach of defendant, his failure to produce him ought properly to be a subject of comment by the prosecutor. 12 Cyc. p. 578.
The other complaint is directed against the argument of the prosecutor, placing the wives or daughters of the jury in place of the complaining witness, etc. We thinks this line of argument was considered and condemned in People v. Eamaus, 207 Mich. 442.
For the errors noted the judgment must be reversed and a new trial ordered.
Wiest, McDonald, Clark, and Steere, JJ., concurred.
Fellows, C. J., and Sharpe and Moore, JJ., concurred in the result. | [
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Moore, J.
On November 15, 1917, plaintiffs purchased from George W. Gleason and Lizzie J. Gleason, his wife, the land described in the bill of complaint, for the sum of $9,400, assuming as part of the purchase price two certain mortgages, one for $5,000, and one for $700, running to the defendant. It was understood by the plaintiffs that there was also $700 in interest on these mortgages that they had assumed. The date of the $700 mortgage was February 24, 1917. On December 10, 1917, the plaintiffs claim to have paid the sum of $350' to the defendant. On December 17th, $500, on December 28th, $350, and on December 29th, $1,050, in all $2,250. Plaintiffs have receipts for these payments. On the 28th day of December, 1917, the mortgage for $700 was discharged by W. S. Fotheringham, cashier of defendant bank. The $5,000 mortgage was dated March 7, 1916, payable 3 years from date, with interest at the rate of 7 per cent, per annum, interest payable December 15, 1916, and annually thereafter. The $5,000 mortgage was assigned to the Agricultural Life Insurance Company on September 16,1916, and by them assigned to the Michigan Live Stock Company on April 21, 1917, and re-assigned to the Agricultural Life Insurance Company on May 12, 1917, and assigned by the Agricultural Life Insurance Company back to the Farmers State Savings Bank on January 4,1919. The Farmers State Savings Bank also retained an interest in this $5,000 mortgage at the time of the first assignment amounting to one per cent, of the interest payable by the grantors, the assignees taking "the mortgage over upon a six per cent, basis, while it called for seven per cent, interest.
On the 20th day of December, 1918, plaintiffs tendered to Francis F. McGinnis, president of the Agricultural Life Insurance Company, the sum of $4,444.54 in full payment and discharge of said mortgage. Mr. MeGinnis refused to accept the same and discharge the mortgage. On the same day a tender was made in legal tender to W. S. Fotheringham, cashier of the Farmers State Savings Bank in the same sum. The tender was computed upon the basis of the plaintiffs owing the sum of $4,150. The tender was refused. On December 27, 1918, a tender was made to Mr. Fotheringham of the sum of $306.93 as interest due up to said date, computed upon the basis of $4,150 being owed. On January 27,1919, the Farmers State Savings Bank began the publication of a notice of mortgage sale of said property for unpaid interest.
On the 81st day of March, 1919, one of the plaintiffs, Carl Gasta, learned of such publication, and upon April 1, 1919, the plaintiffs filed their bill of complaint in this cause asking for an injunction to restrain the Farmers State Savings Bank from proceeding with such foreclosure proceeding. No temporary injunction was issued. The defendant answered the bill of complaint. On October 1,1920, the case was heard. The judge filed his findings on December 28, 1920, and on January 8, 1921, a decree was filed requiring the defendant to permit the plaintiffs to redeem for the sum of $4,506.49, the amount of principal and interest on said mortgage, computed on the basis of plaintiff’s claim of $4,150 computed to the 7th day of March, 1919.
After filing the bill defendant proceeded with the foreclosure proceedings and the property was sold at sheriff’s sale and bid in by the defendant. The defendant brings the' case here by appeal.
The whole controversy arises over the question of whether $1,050 was paid when the last receipt was given. The plaintiffs assert it was. The defendant asserts no money was paid at that time.
The trial judge expressed himself as follows:
"On the trial of the cause, plaintiffs produced written receipts and witnesses testifying to the payments having been made to defendant bank on said mortgage, as follows: December 10, 1918, $350; December 17, 1918, $500; December 28, 1918, $350; December 29, 1918, $1,050, and introduced in evidence the receipts from defendant evidencing such payments, each of the receipts for $350 bearing evidence on its face that it was for interest on the mortgages in question, and the other written receipts, one for $500 and the other for $1,050, bearing evidence that they were given in payment of money on the so-called Gleason mortgages, which said written receipts and oral testimony produced by plaintiffs made a prima facie case by plaintiffs of the payment of $2,250, on said mort gages. Defendant bank gave testimony in support of its claim that plaintiffs paid to defendant on December 10th, $350, and on December 17th, $500, and on December 28th, $550, instead of $350, for which the receipt was given by defendant bank on that day; that it gave no receipt .for the $200 additional amount claimed to have been paid by plaintiffs but that the $500 formerly paid and the $200 paid on the 28th, over and above the amount receipted for, was applied to liquidate the said $700 mortgage, which was discharged. Defendant bank gave further testimony that the receipt dated December 29th, for $1,050, did not represent any payment other than the $200 paid the day before, over and above said interest payment of $350, and that said receipt for $1,050 also included the two payments evidenced by the two receipts immediately preceding the one dated December 29th, the receipt of December 17th, of $500 and the receipt of December 28th of $350.
“While a receipt is not conclusive evidence of payment, the prima, facie case having been made, the burden was on the defendant bank to show that the said receipt for $1,050 did not represent an actual payment of more than $200. Jones on Evidence, § 492, and cases cited thereunder.
“The language used under the above references in part is as follows:
“ ‘A written receipt is evidence of a high, character, although it is not conclusive, it is prima, facie evidence of the truth of the recitals which it contains. It is evidence of so satisfactory a character as not to he overcome except by clear and convincing testimony; and the burden of proof as matter of course rests upon the one attacking it.’
“On the trial of the cause the testimony clearly disclosed that one of the parties hereto was mistaken. The testimony produced by plaintiffs in connection with the written receipts was clear, consistent and convincing, which established prima facie their claim. The testimony on the part of defendant disclosed some confusion in connection with the transaction, and admitted errors in connection therewith. The testimony also disclosed that the mortgage indebtedness held by the bank against the property in question was not $6,400 but $6,050; that while two of the receipts stated on their face to be in payment of interest on the Gleason mortgage, the facts disclosed on the hearing was that there was only $350 due on interest at the time the two receipts for $350 each were given in payment of interest. Defendant’s witness writing one of said receipts for interest testified that notwithstanding the receipt bore on its face the words, ‘To apply on the George Gleason interest on real estate mortgage,’ that it was not received by him for that purpose.
“It also later developed that there was some understanding between said Gleason and the bank that plaintiffs were to pay to the bank $350 more than the mortgage indebtedness, an item of no great importance, only that it was a transaction in which the plaintiffsi had no knowledge, as they had been led to believe that there was $700 of interest on said mortgages, which they paid to the bank, and took receipts for; while in truth and in fact there was only $350 of same -due on interest, and the other $350, while the receipt T>ore evidence of its being for interest, was to be applied in some other manner, of which plaintiffs had no knowledge; also there was evidence to the effect that the record of the bank did not disclose that the $700 mortgage was. discharged, but that the $700 paid by plaintiffs had been applied by the defendant bank on a note, a personal obligation of Mr. Gleason.
“From the references above made, and other like circumstances indicated by the testimony, it is quite apparent that the defendant bank not only made erroneous entries in connection with this transaction, but was otherwise mistaken in connection with some feature of the deal, and since the burden of proof is on the defendant to show that said receipt for the payment of $1,050 on the 29th of December was erroneous, and did not represent what it purported to represent, in view of all the testimony given in the case and the plain expression of the record made, the court is forced to conclude' that this burden of proof has not been met,- and in consequence thereof has to take the receipts as showing the fact therein, thereby showing the total payment of plaintiffs to the bank to be $2,250 up to and including the 29th day of December, 1919.”
The claim of defendant is stated by his counsel as follows. We quote from the brief:
“Plaintiff claims that when he got the $1,050 receipt on the 29th he paid that sum to the bank ; defendant denies this; says Gasta paid no money on that date but asked for and obtained that receipt as covering his former payments. It is undisputed that Gasta made a payment to the bank on December 28th, but he claims that on that date he paid only $350 while the bank claims he paid $550. On that date Mr. Fotheringham gave Gasta a receipt for $350 specifying that it was one year’s interest on the $5,000 mortgage, and thereupon proceeded to the court house with Mr. Gasta and discharged the $700 mortgage from the records.
“The following day, December 29th, Mr. Gasta came to the bank and asked for a receipt for the money he paid. Mr. Fotheringham states that he thought he was asking for a receipt for the $200 (the amount of the payment being $550, $350 of which was receipted for as interest on the.$5,000 mortgage), but Gasta wanted a receipt that would cover all his payments. Mr. Fotheringham states in detail in his testimony as follows:
“ ‘He was in the bank the next day, that would be the 29th. He came in and wanted a receipt for what he had paid. He had had receipts previous to this for his different payments as he had made, them, and I was going to give him a receipt for $200, and he says, “No, give me a receipt,” he said, “I am done now, give me a receipt for the whole thing,” and I did, not thinking that anything like this would come out of it. I started to write the $200 receipt and that is when he asked for a receipt to cover the whole thing. Exhibit E is the receipt that I gave him that day, that is on the 29th. No money whatever was paid on that day, this receipt covering the whole transaction and showing what was agreed upon was paid.’
“The previous payments were as follows:
First payment................................. $350.00
Second payment............................... 500.00
Third payment, amount of not covered by the $350 receipt of the day before................ 200.00
$1,050.00
“The $1,050 receipt was given as a blanket receipt covering the above payments. It is defendant’s claim that when Mr. Gasta got the $1,050 receipt on the 29th, he conceived the plan of claiming that he paid that sum of money in addition to what his other receipts showed and holding the bank for that amount.”
The pivotal question in the case is, What was done when the receipt for $1,050 was given? Mr. Gasta’s testimony is:
“On December 28th I went to the bank and paid Mr. Fotheringham, according to my receipt here, $350. The total payment by me was $350 at that time, and that is on December 28th. There is no question about that. On the next day December 29th I went back to the bank again and I paid $1,050 at that time. * * * My wife was with me at that time. I don’t know as it could have been much after 2, because my wife went across and got the money out of the Bay City Bank, and that closes at 3 o’clock, and she carried the money right over with the band around it. . * * * When we got into the bank Mr. Fotheringham was there. I didn’t notice who else, there was Mr. Fotheringham I was doing business with. * * * I talked with Mr. Fotheringham right at the desk there at the front part. I did not go inside of the rail, but talked to him over the desk. At that time I paid $1,050. I am sure of that.
“Q. Got it from your wife, right out of her pocketbook?
“A. I got part of it from her.
“Q. You only got part of it?
“A. Yes.
“Q. I thought you said a moment ago that your wife went over and got that $1,050 in the Bay City Bank and brought it over in a roll and handed it to you when you got to the bank?
“A. I didn’t say $1,050. She didn’t get $1,050 out of the Bay City Bank on the 29th day of December. I didn’t get any $1,050 out of any other bank on December 29th. My wife brought over $500 and I went in the bank and she turned the $500 over to me and I took some more money out of my own pocket. I had pretty close to $600. I turned over to Mr. Fotheringham $550 out of my pocket. I paid $1,050 altogether, and got a receipt from Mr. Fotheringham on the 29th day of December, 1917, for $1,050, and I actually paid $1,050 that day.”
His testimony is confirmed by his wife except she says the payment was made December 28th, and the receipt was dated December 29th, because the bank official said the payment was after banking hours and the transaction would have to be carried into the next day’s business. It is stated in the $1,050 receipt that the money is to apply on the Gleason account.
We have already quoted the version of the cashier as to the giving of this receipt. We again quote from the testimony of Mr. Gasta:
“With reference to the mortgage of $700, Mr. Fotheringham and I walked right up to the register of deeds’ office, and it was discharged there while we were both together by Mr. Fotheringham signing on the book. The first knowledge that I had that there was any dispute between Mr. Fotheringham and I as to the amount owing on this property was about three months later. I don’t know exactly. Mr. Fotheringham called me up and wanted to know if I was going to attend to that note in the bank, pay interest on it, or pay it, and I said, ‘I have paid it.’ This was over the ’phone, and he said ‘no, you have not, and you are going to do something or I will do something,’ so I told him to wait, I would get the receipts out of the safe, and read them to him over the ’phone, and when my wife got the receipts out I found out he was off the ’phone, so I got in the machine me and my wife, and went to the bank and seen him, and I asked him what was the trouble, and he says, ‘you know what was the trouble,’ he said, ‘you either pay that today or I’ll do something about it.’ I don’t know what he meant. .‘Well,’ I said, ‘I came down here to find out what was wrong.’ ‘Well,’ he said ‘you know what’s wrong, you pay that note or I will do something right away.’ So I see I couldn’t go ahead or deal with him, so I came down to the register of deeds’ office and asked Mr. Lambert to look it up, and he opened up several books and looked it up, and he said Mr. Fotheringham discharged it with his own signature. I said, ‘Will you please call him up and tell him about it?’ So what the conversation over the ’phone was that Mr. Lambert and Mr. Fotheringham had I couldn’t say, but I could hear Mr. Lambert say, ‘Why, you discharged it with your own signature.’ Well, then, he told me that Mr. Fotheringham wanted me back to the bank, so I went back to the bank, and finally he said, ‘Sit down and we will talk things over,’ he said, ‘Let me see these receipts.’ I said ‘I haven’t got them with me.’ He said, ‘Where have you got them?’ I said, ‘The attorney has got them.’ He said, ‘Will you get them for me?’ I said, T guess I can.’ So I went up in one of the office blocks and had copies made of the original ones I had, and all they had me credited in the books was $350 of the whole thing, but he asked me to leave the copies there. I did not see the books at that time. He said, ‘AH you have paid on here is $350.’ He said, ‘Would you leave them copies here and we will talk things over,’ and I left them.”
The only reference the cashier made in his direct-examination to this interview is as follows:
_ “Q. Will you tell us how it was that this application of the payments that was made by Mr. 'Snowden came to your attention later?
“A. In going over our mortgages that was past due, Mr. Gasta, I believe, was written to that the mortgage was — interest payment had gone by and was not paid, and he came in and inquired about it, and it was then discoyered that the application had been made on Mr. Gleason’s notes instead of the mortgage.”
We now quote from the cross-examination of the cashier:
“On December 28th I wrote this receipt out and wrote it all in my own handwriting. That is the day Gasta paid me $550. I didn’t give him a receipt for $550 because he was getting a mortgage discharged for the balance — after the $350 for the application of the interest.
“Q. He was getting a mortgage discharge was the reason you did not give him any receipt for only $350.
“A. Wouldn’t he have a discharge in this?
“Q. I am just asking you questions. This receipt is written in your own handwriting, interest on George Gleason mortgage of $5,000, December 15, 1917?
“A. Yes.
“Q. You knew at that time that Gasta was paying on the Gleason mortgage, on the interest against it?
“A. Well, there was $350 out of $1,400 that was to apply as interest on the $5,000 mortgage.
“Q. Well, answer this. You knew that when you received these various items of money that they were paid you to apply on the Gleason mortgage?
“A. No, sir, I did not.
“Q. Then how did you come to take the money and write those receipts?
“A. The money was not all to be applied on the mortgage.
“Q. You didn’t write that on any of the receipts, did you?
“A. Well, the receipts show for themselves.
“Q. Did you tell the truth on the receipts or lie when they were written?
“A. I don’t think I lied about it. The first receipt was written probably before we just figured it was best to accumulate all this money until the deal was finally finished, and possibly the writing of the interest in the first receipt might have been done before we really thought about how to handle the deal.
“Q. Then you want to say now that when you wrote these receipts out that what you knew and what you wrote out are two different things, is that right?
“A. No, I wouldn’t say that.
“Q. You knew what you were writing there then?
“A. Yes, sir.
“Q. Was it so or wasn’t it then?
“A. After the receipt was made—
“Q. Was it so or wasn’t it, what you wrote on the receipts?
“A. Well, I won’t say either way on that.
“Q. Do you know?
“A. Yes, I know.
“Q. Now on December 29th when you gave this receipt for $1,050 why didn’t you give one for $1,400?
“A. Because he had one for $350 that made up the balance of the $1,400.
“Q. Well, he had one for $500, didn’t he?
“A. Yes, sir.
“Q. And he had two for $350 ?
“A. Yes.
“Q. Then why did you give him a receipt for $1,050 ?
"A. Because he asked me to give him a receipt for the whole thing.
“Q. The whole thing was $1,400, wasn’t it?
“A. Yes, sir.
“Q. And you didn’t give him a receipt for the whole thing then?
“A. No, not on that one receipt, because he had the $350 receipt that paid the interest on the mortgage separate and distinct from the rest of the deal. He had two $350 and a $500 receipt. I knew that. * * * It was my business to report to the people that were keeping our books that that mortgage for $700 was to be marked paid. There seemed to be a misunderstanding between Mr. Snowden and I. Which of us just done wrong I am not prepared to say. It should have been the mortgage note that was canceled instead of one of Mr. Gleason’s notes. I wouldn’t be likely to come here and discharge a mortgage on the register of deeds’ record and expect to continue it in the bank.
“Q. Well, as a matter of fact that is what you did do?
“A. Yes.
“Q. Then I say you made a mistake, or somebody did?
“A. Accidentally, yes, sir.
“Q. Now, I ask you about three months later than that instead of writing Mr. Gasta you called him on the telephone, isn’t that the fact?
“A. It might be, I wouldn’t say, possibly so.
“Q. When you called Mr. Gasta down here you claimed you had never discharged that mortgage, didn’t you?
“A. I don’t know how — we might have written him a letter or he might have come by telephone call.
“Q. Well, you said a moment ago you did call him by telephone, didn’t you?
“A. I did not. I said we might have. I don’t re member just how we asked him to come in. When Mr. Gasta did come to the bank I don’t think that he and I had loud words and argument about whether this mortgage had been discharged. I was not going to call up the patrol wagon and have Gasta arrested. I did not order him out of the bank that day. I didn’t use profane language in front of Mr. Gasta’s wife that day and afterwards apologize for it. I ascertained from the register of deeds’ office that I had discharged the mortgage. After that I got Gleason and told him then that he owed us some money.”
It has already appeared that the $1,050 receipt stated the money was to pay on the Gleason account. It has also appeared from his testimony that Mr. Fotheringham gave directions when money was paid in how the money should be applied.
Mr. Snowden testified in part as follows:
“Q. Then in the due course of that particular transaction on the 29th, did you find he had paid all he had to pay on that particular account?
“A. Yes.
“Q. And do you know what the total of that amount was?
“A. Yes.
“Q. What was it?
“A. $1,050.
“Q. Did you dispose of and apply the $1,050 on the 29th of December?
“A. Yes.
“’Q. Now did you apply it on any particular $5,000 mortgage or $700 mortgage?
“A. No.
“Q. What did you apply those payments on?
“A. I applied the payments on Gleason’s notes, his unsecured notes.
“Q. Is that a custom in the bank, to apply moneys received on unsecured notes in the absence of any specific instructions to the contrary?
“A. Yes, sir.
“Q. And you followed the usual custom in that instance?
“A. Yes.
“Q. Had you received any instructions to apply it directly on that $700 or any other mortgage?
“A. No.
“Q. So in the absence of specific instructions, you applied it where you considered it should be applied?
“A. Yes, sir.
“Q. In making the application that you did, did you cancel some of the notes of Mr. Gleason?
“A. Yes.
“Q. And to what amount?
“A. I canceled three notes, according to the records of the bank.
“Q. What were they, and the amounts?
“A. One for $835, another for $75, and another for $100, and then there was an indorsement, that is, a partial payment made on another note of $15, that is, the indorsement amounted to $15.
“Q. That you put on the back of the four hundred?
'"A. Yes, that note was not canceled.
“Q. And that would make a total of how much applied?
“A. $1,025.
“Q. Now what disposition was made of the remaining $25?
“A. That was interest.
“Q. On what?
“A. On the notes that I had credited here.
“Q. That is, on the Gleason notes that you had canceled there was interest to the amount of what?
“A. $25.”
The testimony is very conflicting and it cannot be reconciled. If Mr. Gasta paid $550 December 28th, as the cashier testified, it is difficult to understand why he gave a receipt for $350. If, as claimed by the cashier, the receipt for $1,050 was given to the plaintiffs to cover all previous payments made by them, why was it not given for $1,400, for these amounts had concededly been paid. It is also a pertinent inquiry as to why it stated the money was to apply on the Gleason account followed immediately by its application on that account.
This case of course is to be heard dei novo by us and is to be decided by the weight of the evidence as disclosed in the record. In case of conflicting testimony it is clear that the chancellor has a great advantage in hearing and seeing the witnesses. In the instant case we have the positive testimony of the plaintiffs that the money was paid. This testimony is confirmed by the written acknowledgment of the cashier that it was paid. A careful perusal of the record and the briefs of counsel and the able oral arguments of counsel, to which we listened attentively, has not convinced us that the decree is wrong.
It is affirmed, with costs to the appellees.
Fellows, C. J., and Wiest, Clark, Sharpe, and Steere, JJ., concurred. Bird, J., did not sit.
The late Justice Stone took no part in this decision. | [
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Wiest, J.
Defendant was convicted of the crime of robbery while armed, with intent to kill or maim if resisted. At the trial defendant claimed he was not at the place of robbery, and it is contended that, in charging the jury, the trial judge failed to give instruction relative to such defense. Counsel for defendant presented no requests to charge. It is within the common intelligence of jurors, without being told, that if the accused was at another place at the time of the robbery, then, of course, he was not the robber.
We have examined the charge and find the question of defendant’s participation in the robbery was fairly presented to the jury. It is claimed:
“The testimony offered by the defense was of such a nature and character that only a prejudiced and biased jury could have decided that the defendant was guilty of the crime charged. The verdict was contrary to the great weight of the evidence.”
A reading of the testimony does not persuade us there is any support for the argumentative part of the assignment of error. The robbery took place in a store, in the evening, with all lights on, and defendant was identified, five hours later, by the victim of the robbery,- as the robber who went through his pockets and took his money. We cannot hold that the verdict should be set aside as against the great weight of the evidence.
After the verdict, counsel for defendant in a motion for a new trial presented two affidavits, in each of which it was stated:
“Deponent further says that it is his belief that all of the citizens of Detroit were prejudiced against any person accused of the crime of robbery while armed, and believed any person so accused to be guilty, unless his innocence were established, and entertain the same feelings of bias and prejudice as this deponent.
“Deponent further says that in his opinion any citizen of this State who might act upon the jury in a trial of any such cause could not render a verdict in a fair and unbiased manner.”
Such a general charge, based upon the belief of two citizens, spreads out too thin in a city of about a million inhabitants, to reach or impeach the verdict of the jury.
We find no error, and the conviction is affirmed.
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.
The bill of complaint was filed in this case on November 10, 1920, for the purpose of obtaining the construction of a will left by Mary J. Granger, deceased. Mrs. Granger died May 30, 1892. Her will was duly probated. One witness was sworn who testified in substance as follows:
“Mary J. Granger was my grandmother. She died on the 30th day of May, 1892, leaving certain property in the city of Detroit, the assessed valuation of which was $29,150. At the time of her death she left the following heirs: Sarah J. Granger, a daughter, 44 years of age at the time of her mother’s death, who died March 9,1920; Joseph W. Granger, a son 41 years of age at the time of his mother’s death, who died October 9, 1897; John H. Granger, a son, at the time of his mother’s death 54 years of age, who died May 8, 1896; Emily Lawson Knight and Joseph G. Lawson, children of her deceased daughter, Nancy Lawson Hunt, who died January 1, 1884; Joseph N. Duryea, John L. Duryea, Nellie Duryea, Ida Duryea Tobin and Sarah Warren, all children of her daughter Mary P. Duryea, who died April 17, 1890. Ida Duryea Tobin died after her grandmother about the year 1915, married, leaving a husband and no issue.
“Q. Do you know whether or not your grandmother had any reason to favor any of her grandchildren more than another?
“A. I know of no such reason.”
Certain documentary proof was introduced in evidence.
A decree was entered dividing the property per capita among the grandchildren. The case is brought here by appeal.
It is agreed that the only question is whether the distribution of the property should be per capita or per stirpes. The appellants claim it should be per stirpes.
The provisions of the will calling for consideration read:
“Third: Out of the cash or securities which I shall have in bank or elsewhere, I direct my executors to pay over to Andrew McLellan, banker of Detroit, Michigan, and to said Sarah J. Granger the sum of two thousand dollars, to be held by them in trust for the uses of my son John to wit:
“(1) To care for him in case of severe illness, when he may in their opinion need more than the monthly allowance herein provided to be paid to him; (2) to defray the expense of transportation of his remains to Detroit, if he should die away from here, and his funeral expenses generally and (8) to pay for a headstone to his grave and (4) to pay the residue if any, at his death into my general estate. I further direct my said trustees that they may pay the income from said fund to him annually, or to allow it to accumulate as they may from time to time think best. * * *
“Fifth: All the rest and residue of my estate including the reversion of the real estate on • Adams Ave. W., hereinbefore given to my daughter for life, I give, will and devise to the said Andrew McLellan and Sarah J. Granger in trust only for the uses and purposes herein named, to-wit: * * * (2) Out of the net income of my said estate to pay to my eldest son, John H. Granger, the sum of forty dollars per month on the last day of each and every month for his support so long as he shall live.
“ (3) The remainder of the income from said estate I direct to be divided into four equal parts and one fourth thereof paid to Joseph W. Granger or his issue, one fourth to Sarah J. Granger or her issue, one fourth to. the children of my daughter Nancy E. Lawson Hunt, and their issue, and one fourth to the children of my daughter Mary P. Duryea, and their issue, the payments to my children being made quarter yearly and those to my grandchildren or their issue at such times, and in such amounts and manner as shall seem to my trustees best calculated to induce, aid and enforce in them respectfully habits of industry, economy and thrift.
“(4) After the death of my children, Joseph W. Granger and Sarah J. Granger to divide all of my estate, except the special trust for John of $2,000 and the fund hereinafter named for him, if he then be living and the cemetery lot fund, or the proceeds from the sale of the same as my trustees may think best for my legatees hereunder, between those of my grandchildren as shall then be living and the issue of such of the grandchildren as shall then have died and left issue them surviving. But if my son John H. shall survive my other children, a sufficient portion of said estate shall be held by my trustees for the purpose of producing a clear regular income as provided for in paragraph two of this article.”
It is a cardinal rule in the construction of wills that the intent of the testator should be gathered if possible from the entire instrument. Tewksbury v. French, 44 Mich. 100; Cummings v. Corey, 58 Mich. 494; Wales v. Templeton, 83 Mich. 177; Thurber v. Battey, 105 Mich. 718; Gregory v. Tompkins, 132 Mich. 205; In re Ives’ Estate, 182 Mich. 699; In re Blodgett’s Estate, 197 Mich. 455.
The appellants urge if this rule is followed that the' distribution should be per stirpes and they lay great stress upon the provision relating to the distribution of the income of the estate.
The court below decreed that it was the intention of said testatrix to divide the principal of her estate equally, share and share alike, among the grandchildren surviving at the death of the said Sarah J. Granger. If the decree of the lower court is sustained, each of the grandchildren will take an undivided one-eighth of said estate. If the contention of the appellants is sustained, and the grandchildren should take per stirpes, Emily Lawson Knight, Joseph G. Lawson, Frank Granger and Stanley R. Granger would each take one-sixth of said estate, and the four Duryea heirs, viz., John L. Duryea, Nellie Duryea Barry, Sarah Duryea Warren, Joseph H. Duryea or his assignee, would each take one-twelfth of said estate. • There is nothing in the record to indicate that Mrs. Granger held some of her grandchildren in higher esteem than she did the others, or that she desired to provide more liberally for them.
The language of the will is that, after the death of Mrs. Granger’s children, Joseph W. and Sarah J., and the execution of the special trust to her son, John H. , all of the remainder of her estate shall be divided “between those of my grandchildren as shall then be living, and the issue of each of the grandchildren as shall then have died and left issue them surviving.”
This language is not ambiguous and clearly in dicates that Mrs. Granger desired the final distribution of her estate to be made per capita. We think the instant case is quite readily distinguishable from Eyer v. Beck, 70 Mich. 179, cited by counsel for appellants, as appears by the following language of Justice Campbell :'
“But it seems to us also that the will is not ambiguous in its language, and is only made so by importing into it a forced and unnatural doctrine which the testator probably never heard of. The laws of inheritance are generally understood by intelligent people. It' is understood that when there are children and grandchildren to take, the grandchildren by one child take in the aggregate only that child’s portion. In our judgment this idea is clearly expressed in the will. The testator directs that the property shall be equally divided among his ‘heirs.’ He then goes on to name them,- and in so doing gives the name of each child, but not of any grandchild. Those he describes only as ‘the children of Christian Beck, Jr., deceased.’ Coming as this does in the description of the heirs, we think it evidently means that those children together represent one heir. That is in harmony with the statute of distributions, and is at least quite as natural a meaning as the other, and is to be preferred for that reason, as conforming to our general policy.
“As already suggested, any language which distinctly indicated a preference for the three grandchildren over other grandchildren should have due weight. But there is no such language. In spite of the leaning of some of the outside decisions to the contrary, we think there is significance in grouping without naming them.”
The instant case is more like Wells v. Hutton, 77 Mich. 129; Van Gallow v. Brandt, 168 Mich. 642; Colby v. Wortley, 205 Mich. 609.
We think the chancellor reached a right conclusion.
The decree is affirmed, with costs to the appellees.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.
gift to persons not designated by name but by general description, and as being living at a certain time prior to testator’s decease, as a gift to individuals or to a class, see note in 34 L. R. A. (N. S.) 945.
On the question as to whether division is per stirpes or per capita under a gift to issue, see notes in 2 A. L. R. 963; 5 A. L. R. 195.
On the question of taking per stirpes or per capita under will, see note in 16 A. L. R. 15. | [
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] |
Wiest, J.
(dissenting). Plaintiffs claim they are the lawfully constituted trustees of St. John’s Greek Catholic Church, a religious corporation in the city of Detroit, and they filed the bill herein to be so adjudged and to be entitled to the possession of the church property and records now in possession of defendants Andrew Popovich, president, Theodore Worko, Peter Poczywak, Ilko Procaylo, Mike Paslawski, Paul Fortuna and John Forys, who they say constitute the new board of trustees, but whose election to that office they attack and charge to have been illegal and void. The charges against the other defendants a,II hinge upon the question of who are the lawful trustees. Answers made by defendants under oath, as required by the bill, aver the plaintiffs are not trustees and defendants above mentioned are the lawful trustees, and the answers fully meet the charges made. Upon motion of defendants the circuit judge dismissed the bill on the ground that it presented no case of equitable cognizance and plaintiffs’ remedy, if any, to try out the title to the office of trustee is on the law side of the court by information in the nature of quo warranto.
The bill shows on its face that defendant trustees are in office under color of authority of an election and have possession of the corporate property and are not de facto officers or mere volunteers or intruders, unless their election to the office was void. The bill herein was not filed by the corporation, but by per sons claiming to be the lawful trustees of the corporation. The purpose of the bill is to remove from possession, management and control of the corporate affairs the trustees in possession and control and make way for the plaintiffs, who claim to be the true trustees, and to put them in possession by way of mandatory injunction.
This is not a suit against the trustees of the corporation, in recognition of their official character, to set them right and keep them in the right way as officers. This suit does not involve the ownership of the property, as that is vested in the corporation. The corporate affairs of the church appear to be under the control and management of trustees. But who are the trustees? That question must be answered before the court can send out its mandatory injunction taking possession from one set of trustees and giving the same to another set. The relief prayed for by plaintiffs, if any is granted, can come only after determination that the defendants are usurpers. It is not within the power of the court of chancery to take away from lawful trustees the management of the corporate affairs or to determine who are the lawful trustees and by injunction install them. If the defendants are not entitled to the office which they assume to hold and the functions which they are exercising, proceedings should be instituted for the direct purpose of trying their right thereto and of evicting them if they are usurpers.
In Commonwealth, ex rel. Gordon, v. Graham, 64 Pa. St. 339, quo warranto was held the proper remedy against persons usurping the office of trustees of a, chartered church.
In Attorney General, ex rel. Dusenbury, v. Looker, 111 Mich. 498, quo warranto was held the proper remedy by which to try title to the office of director of a private corporation.
22 R. C. L. p. 666, states:
“The question has been frequently raised as to whether the remedy by quo warranto may be employed to test the right to an office in a private corporation. * * * In nearly all the States of this country it is held that the remedy by quo warranto or information in the nature thereof lies against one who usurps an office in a private corporation. The general principle underlying this conclusion is that corporations chartered by the State, or organized under the general statutes of the State are public franchises, regardless of the character of the corporation, and that the usurpation of a corporate office, therefore, amounts to the usurpation of a privilege granted by the State. With respect to the manner of their creation and the use of the remedy by quo warranto there is in principle no difference between the office under a municipal corporation and one under a private corporation. They are all offices of a public character. Thus an information in the nature of quo warranto may be filed to test the right of a person to the exercise of the office of the trustee of a corporate church, or the director of a manufacturing corporation, and in the case of many other particular offices.”
In Carpenter v. Clark, 217 Mich. 63, we had occasion to review the authorities upon.the pivotal question here involved, and held quo warranto to be the proper remedy to determine the validity of an election and title to office in a corporation.
The learned circuit judge properly dismissed the bill, and the decree entered in the circuit should be affirmed with costs to defendants, but without prejudice to the right of plaintiffs to file an information in the nature of quo warranto.
Fellows, C. J. I do not agree with the view that a court of equity is without jurisdiction to determine the rights of the parties in this controversy. Bear v. Heasley, 98 Mich. 279 (24 L. R. A 615); Richter v. Kabat, 114 Mich. 575; Borgman v. Bultema, 213 Mich. 684. In each of these cases a similar controversy was considered by this court and the rights of the parties determined. In Richter v. Kabat, supra, the jurisdiction of a court of equity was directly assailed and distinctly sustained. We there quoted with approval from the opinion of present Chief Justice Taft in Brundage v. Deardorf, 55 Fed. 839, the following language:
“The peculiar character of the possession by the church trustees, and of the use by the pastor and congregation, makes it clear that a mere action in ejectment would be quite inadequate as a remedy to secure the complainant trustees, and those whom they represent, the same peculiar possession and use for them. The writ of injunction is well adapted to prevent an unlawful intrusion in the pulpit by the pastor, and an unlawful use by the congregation, against all of whom it would be obviously impracticable to institute proceedings in ejectment.”
We also there cited with approval Trustees, etc., of New Elm v. Hoessli, 13 Wis. 348. In this case it was said by the Wisconsin supreme court:
“The entire value of such property consists in its free and undisturbed use and enjoyment for religious worship. Considering, therefore, the nature of this property, the use and purpose to which it is dedicated, the mischief arising from acts of trespass upon it, and the insufficiency of the ordinary legal remedies, we must say that, in our opinion, the complaint states a proper case for an injunction.”
There is something beside title to office here involved. The ownership, possession and control of the church property is involved. I think the court should have entertained jurisdiction and overruled the motion to dismiss.
I do not think the practice followed in this case should be approved. Defendants filed answers denying the material allegations of the bill. Nearly two . months thereafter this motion to dismiss was filed. I think the better practice requires that the motion to dismiss should be filed before or with the answer. 3 Comp. Laws 1915, § 12456; Horner v. Building Co., 197 Mich. 530.
I think the decree should be reversed and the case remanded for hearing on the merits and that plaintiffs should have costs of this court.
Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred with Fellows, C. J.
The late Justice Stone took no part in this decision. | [
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] |
Clark, J.
Fred A. Henry and wife owned lots 335, 336, 337, 338, 339 and 340, city of Flint, shown on the appended map, but the record title to the west 39 feet of lot 340 was in the name of Mrs. Henry. By a separation agreement Mr. Henry agreed to convey to Mrs. Henry lots 338 and 339, reserving to himself and his grantees, owners of lots 335, 336 and 337, a perpetual easement, a right of way in certain
driveways, the language of paragraph five thereof being:
“It is mutually understood and agreed that the conveyance of the property mentioned in section one shall be subject to a perpetual easement or right of way in the driveways upon said property, for the joint use and benefit of the property owners of lots 335, 336 and 337 above referred to, their heirs and assigns, ad jacent to lots 338, 339 and 340. And second party, her heirs and assigns, agrees not to obstruct said driveways.”
This was followed by a deed to Mrs. Henry of lots 338 and 339 and the west 39 feet of lot 340, from which we quote:
“Subject to a perpetual easement or right of way in the driveways on said premises for the use and benefit of the owners of lots three hundred thirty-five (335), three hundred thirty-six (336), and three hundred thirty-seven (337) of said Stone-McDonald Addition (their heirs and assigns) adjacent to the premises hereby conveyed.”
Mrs. Henry then conveyed to defendants lot 338, the west 54 feet of lot 339 and the west 39 feet of lot 340, the deed reciting:
“Subject to a perpetual easement or right of way in the driveways on said premises for the use and benefit of the owners of lots 335, 336 and 337 of said Stone-McDonald addition, their heirs and assigns, adjacent to the premises hereby sold and conveyed.”
The shaded portion of the map indicates the location of the driveways upon the property. Plaintiff Henry owns lots 336 and 337. Defendants’ dwelling is upon parts of three lots, as indicated, their garage is upon lot 339, and a porte-cochere extends over the driveway just west of their dwelling, and the principal question in the case is whether plaintiff, his grantees or others upon lots 335, 336 and 337 have a right under the agreement and the deeds to use such driveway. The right of plaintiff and others to use the other driveways extending from Detroit street to Adams avenue across lots 338 and 339 is not questioned.
Preparing to install a gasoline filling station on their property, defendants constructed what appears on the map as “Sinclair New Driveway” both ends of which cross the outer ends of the other driveways near Detroit street. It is said that defendants have no right to subject the other driveways to such use. Defendants obstructed the driveway west of their dwelling and denied plaintiff’s right to use the same. A claim that the installing of a filling station was in violation of building restrictions and that it would constitute a nuisance was not pressed at the trial. The relief sought was that defendants be enjoined from obstructing any of such driveways except the new driveway as against the claimed rights of plaintiff and from using such driveways or any part thereof in connection with such filling station. Plaintiff was decreed the relief prayed. Defendants have appealed and present the following questions:
“(1) That the construction given by the trial court in its decree to paragraph five of the property settlement made between Fred A. Henry and Clara A. Henry (Exhibit A) is erroneous and should not be confirmed by this court.
“(2) That the decree of the trial court should be modified so as to exclude plaintiff from having an easement in the circular driveway extending from the intersection of Helen and Detroit streets under the portico of the Henry residence northerly until it intersects with the driveway extending from Detroit street to Adams avenue.
“(3) That the decree should be modified to permit the use of the driveway contemplated by the defendants so far as such use does not interfere with plaintiff’s easement therein.
“(4) That the decree of the lower court should be modified so as to preclude the plaintiff from bringing any action to have defendants’ proposed filling station declared a nuisance.”
We agree with defendants. The language “adjacent to lots 338, 339 and 340,” “adjacent to the premises hereby conveyed,” must not be ignored. Adjacent means bordering on, near, or contiguous. It relates to driveways, none of which are within the exact meaning. But given a fair and probable mean ing it relates to the driveways along the border of the lots, extending across them from Detroit street to Adams avenue. It is improbable that a right of way in the driveway west of defendants’ house, with consequent interference with or loss of the use of the porte-cochere, was intended. And treating the language as ambiguous, as did the trial court, a consideration of all the evidence and of the writings themselves leads to the conclusion that there was no reservation of a right of way under the porte-cochere and ini the driveway west of defendants’ dwelling.
Plaintiff was not entitled to the relief decreed for it was not made to appear that the use to which defendants purposed to subject the westerly end of the driveway would materially impair or unreasonably interfere with its use as a way by plaintiff.
The rule is stated in 19 G. J. p. 978:
“Thus an owner whose land is burdened with a right of way has all the rights and benefits of the soil consistent with the reasonable use of the way, and may use the land over which the way passes in any manner which does not materially impair or unreasonably interfere with its use as a way.”
The portion of the decree here sought to be modified is:
“It appearing to the court that the erection of the proposed filling station referred to in the pleadings in said cause has not proceeded far enough so that the cost of said structure nor its effect in regard to becoming a nuisance is ascertainable, and no, proofs having been offered by either side on those subjects, the question of the effect of the erection and use of said structure (if it is hereafter erected) is not passed upon nor the rights of the parties in regard to those matters in any way considered, so that the plaintiff, his heirs and assigns, are not to be concluded in regard to those matters by this decree, but the right to litigate those questions, should it be deemed necessary hereafter, is left unimpaired.”
This is in accord with the holding in Wolfschlager v. Applebaum, 213 Mich. 180.
The decree so modified is affirmed, with costs of both courts to defendants.
Fellows, C. J., and Wiest, Bied, Shaepe, Mooee, and Steeee, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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] |
Clark, J.
Plaintiff in justice’s court sued defendant to recover installments due upon a land contract. Defendant pleaded the general issue with notice of set-off, a claimed amount due defendant from plaintiff as his share of the profit arising from the sale of certain land. From a judgment of no cause of action, defendant appealed. In the circuit court plaintiff abandoned his claim and declaration and the claim made by the defendant’s plea became, counsel consenting, the issue for trial.
Plaintiff was a dealer in real estate. Defendant was a grocer, principally, and. somewhat inclined to dealing in real estate. Both lived in Flint where defendant showed plaintiff, whom he had known many years and with whom he had dealt, a piece of land. Plaintiff was interested and said, as defendant testified:
“ ‘Let’s buy it together,’ and said, ‘who has got it?’ I told him Gene Mitlow. We talked it over and bought the property for $1,500 and Mr. Mitlow took a $25 deposit. He said, ‘the parties live in Toledo.’ He went down to Toledo to make his deposit there, came back and said they had raised their price to $1,600. Steinhoff said, ‘what will we do about it?’ I said looks as though he was working us for a hundred, it looks to me a good buy yet. We could not buy the material in the house for $2,500.”
Upon the payment of the $25 plaintiff was given a receipt for $25 of which defendant, although calling the writing an option, testified:
“Q. It was merely a receipt, was it not?
“A. A receipt for $25. * * *
“Q. Who put up $25?
“A. Mr. Steinhoff.
“Q. Whose name was the option-taken in?
“A. Taken in Mr. Steinhoff s name. I had no general partnership nor arrangement with him. This was the only deal of its character I had with him. What I was to get out of it was a share of the profits. That agreement was carried out between us with the exception that he has not as yet given me my share of the profits. * * *
“Q. Now what was your arrangement with Mr. Steinhoff relative to this deal?
“A. That the day he paid the $25 I said, ‘now you can pay that, and I will pay you half of it. I have not very much money here. I can give you a check for my half of it. You pay all and I will produce the other half any time you want it.’-
“Q. Who was to pay up- the money for the purchase of this property?
“A. Both of us.
“Q. How were the losses to be divided?
“A. Equally, each of us receiving one-half profits and standing one-half losses.
“Q. Now did you ever put any money at all in this transaction?
“A. No, sir.
“Q. Was there any written agreement between yourself and Mr. Steinhoff?
“A. No, sir.
“Q. In whose name was the title to be taken to the property?
“A. Nothing said about that, he said we would sell it if we could.
“Q. But you were to purchase the property for a cash price, were you not?
“A. Yes, sir.
“Q. So that you, were to get the property, the title was to be taken by one of you.in the property, or both of you, was it not?
“A. I suppose if we took the title, it was to be taken jointly.
“Q. Did you ever do anything toward financing this transaction?
“A. I told him I stood ready. I had the money in the bank to pay my half of it and urged him to take-the deed, close the deal, and hold the property.
“Q. You wanted him to take the deed?
“A. Yes, sir.
“Q. Then you contemplated at the start .taking the title to this property, did you not?
“A. No, we did not unless — if we could sell it. readily, but if we could not sell it readily we would take the deed.”
Plaintiff testified:
“I first took" the option on this property in question in my own name. I paid the money.
“Q. When you say an option, do you, mean the receipt that was taken?
“A. I made a deposit on it, got a receipt for it.
“Q. What was the arrangement you had with Mr. Bullock, if any?
“A. Mr. Bullock came in, I was short of capital for carrying on the business that I wanted to carry on. He said he thought there were better bargains in other parts of the city than in the Detroit street section and urged me to go out and look at them. He showed me this particular piece of property and suggested we. buy it. I told him I had two or three hundred dollars that I could use, if he did not have enough to finance the whole. The proposition was that he was to finance the deal. I was to advertise and sell the place and was to divide the proceeds. He was to furnish the money, I would do the work and divide the proceeds. As soon as we looked at the property I suggested we-make a deposit on it then it was the next day after-wards before that real estate man would take a deposit on it. * * *
‘T asked Mr. Bullock repeatedly if he wanted to-put up part of the deposit. He said for me to put it up, if there was any more to be put up he would. We had an understanding at the time, we went out and priced this property at 1500 cash or 1800 with. 600 down. So I suggested that we pay cash for it and get it at the lower' figure, that with the improvements that was on it we would be able to get some mortgage from the bank, that if he did not have enough cash to make up the difference between what we could get in the mortgage I had two or three hundred dollars I could put in myself.”
Defendant advanced no money. After considerable delay plaintiff, it seems, took the deed of the property in his own name, made sale, advised defendant that the profit was $100 and gave him $50. The profit was $529. A motion for a directed verdict in plaintiff’s favor was denied. A verdict in favor of defendant was directed for $264.50 Plaintiff has brought the case here by writ of error.
The oral agreement between the parties contemplated that each party should have an interest in the land itself. They were to purchase and take title. The agreement is within the statute of frauds (chapter 231, 3 Comp. Laws 1915) and is void — a nullity — and cannot be used for any purpose. See Raub v. Smith, 61 Mich. 543 (1 Am. St. Rep. 619); Smelling v. Valley, 103 Mich. 580. And upon the facts above set forth this case is controlled by the following cases: Nester v. Sullivan, 147 Mich. 493 (9 L. R. A. [N. S.] 1106); Tuttle v. Bristol, 142 Mich. 148; Pulford v. Morton, 62 Mich. 25; Brosnan v. McKee, 63 Mich. 454; McLennan v. Boutell, 117 Mich. 544.
And the agreement here was between principals, not between principal and agent, and is not controlled by the holding in Carr v. Leavitt, 54 Mich. 540, and similar cases. Nor was there an agreement here merely to secure and sell an option or options to bring the case within Mullholland v. Patch, 205 Mich. 490, or Brittson v. Smith, 165 Mich. 222, and to take it out of the statute.
It is also claimed that this action at law cannot be maintained, there being a partnership, but the remedy if any is by bill in equity. The parties did not claim a partnership relation (see testimony above quoted) and upon the facts one cannot be chimed. See Mullholland v. Patch, supra, and Morrison v. Meister, 212 Mich. 516, where this question is fully considered.
It is also urged at length that statements by the trial judge to plaintiff in the presence of the jury were highly prejudicial. The answer to this is that a verdict was directed. No other question is raised by counsel. A verdict for plaintiff should have been directed.
Judgment reversed, without a new trial, and with costs to plaintiff.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ,, concurred. | [
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Sharpe, J.
The plaintiff, on July 21, 1917, sold a Jordan touring car to Louis J. Schuster under a conditional sale contract. On the same day he obtained a policy insuring him against loss by fire, theft and transportation from the defendant company to the amount of $1,800. An indorsement thereon reads:
“It is understood that the automobile described in this policy has been sold by the said Charles E. Baker to the said Louis J. Schuster, under a conditional sale . contract, a copy of which shall be furnished to this company by the said vendor on demand.
“Loss, subject to all the terms and conditions of this policy, shall be payable to the said vendor and the said vendee as their respective interests may appear.”
On July 23, 1917, Schuster, without knowledge of this policy, obtained one in the Westchester Insurance Company, covering the same risk, in the sum of $1,700. This policy contained a warranty that the title to the car was in Schuster and that it was not mortgaged or otherwise incumbered.
The automobile was destroyed by fire on November 12, 1917. Schuster was at that time owing plaintiff $648.72 on the purchase price. The plaintiff notified the defendant’s agent of the fire and furnished proofs of loss as required by the policy. The defendant declining to pay, Schuster assigned his interest in the policy to plaintiff, who brought suit thereon. Schuster had theretofore, and before he knew of plaintiff's insurance, made claim under his policy, but such claim was apparently abandoned and the policy returned to the company.
The case was tried before the court without a jury. Findings of fact and conclusions of law were filed. The 6th finding of fact reads:
“That at the time Schuster went to get his insurance in the Westchester. Fire Insurance Company, he told the agent, Goldberg, that he had purchased the car on time which was giving him notice that he was not the sole, and unconditional owner of the car.”
To this and the court’s conclusion as matter of law that plaintiff could recover but the $648.72 yet due him from Schuster the plaintiff prepared amendments and filed exceptions to the refusal to grant same.
The claims of the plaintiff for reversal may be thus stated:
(1) The Westchester policy was void because Schuster was not the sole and unconditional owner of the car.
(2) Even if valid, the insurance thereunder would not attach, by reason of Schuster’s interest being covered by the policy sued on.
It is insisted that the 6th finding of fact, above quoted, is not supported by the evidence. We think the finding in no way controlling. Either Schuster advised Goldberg of the state of the title or he did not. If he did, notice to the agent was notice to his principal and the company is bound thereby. Pollock v. Insurance Co., 127 Mich. 460; Simpson v. Insurance Co., 184 Mich. 547. If he did not, as it does not appear that the agent made any inquiry as to the state of the title, the policy would be valid. This question is settled in this State by the decision in Crossman v. Insurance Co., 198 Mich. 304 (L. R. A. 1918A, 390). At page 307 it is said:
“The testimony is undisputed that the application for this insurance was verbal, and that Mr. Craig was not inquired of as to the state of his title. There is no claim of any fraud practiced by him, or any deceit on his part. Under the holdings of this court, he was not required, under these circumstances, to show the exact condition of his title.”
Many cases are cited in support of this holding.
Schuster had. an insurable interest in the automobile as well as plaintiff. Crossman v. Insurance Co., supra. The fact that plaintiff had procured insurance on Schuster’s interest would not avoid the policy afterwards issued to Schuster himself when obtained by him in ignorance of that fact. The interest of Schuster under plaintiff’s policy was voided when protected by the policy secured by him. Plaintiff’s policy contains a provision that it shall be null and void:
“If at the time a loss occurs there be any other insurance covering against the risks assumed by this policy which would attach if this insurance had not been effected.”
We find no error in the conclusion of the trial judge that, as Schuster’s interest was fully protected in the policy issued to him and in force at the time of the fire, the policy issued to plaintiff and here sued on was void to the extent of Schuster’s interest therein.
No finding was made by the trial judge as to interest, nor was any allowed plaintiff in the judgment entered. In the findings requested by plaintiff, his counsel asked for interest at the legal rate. In amendments to the findings as made he made a similar request and preserved the question by proper exception and assignment of error. Defendant’s counsel insist that no interest should be allowed because not claimed in the declaration and no proof offered as to the amount of it. The statute fixes the rate. The policy fixed the time when the loss should be payable. Interest is recoverable on the amount in default from the date when it should have been paid. Manistee Navigation Co. v. Filer, 185 Mich. 302, 307.
For this error the judgment must be reversed, with costs to plaintiff, and the cause remanded for a new trial or other proceeding in harmony with this opinion.
Steere, C. J., and Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred. Moore, J., did not sit. | [
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Wiest, J.
Bill for specific performance of an option given by defendant to plaintiff to sell to it certain premises in the city of Port Huron and accepted by plaintiff. It appears, that March 14, 1919, J. G. O’Brien, an agent of plaintiff, was in Port Huron looking for sites for service stations and had his. attention called to the premises in suit, and finding that defendant was. owner thereof and resided thereon he visited her, and she sent him to see H. P. Warwick, a real estate dealer with whom she had listed her property; for sale at a price of $8,000.
Mr. O’Brien called upon Mr. Warwick and was informed of the price at which the property had been listed and made the proposition that he would put the matter up to the Chicago office at a price of $7,500 on an option to purchase. Mr. Warwick at once took up the matter of sale with defendant and reported to Mr. O’Brien, and Mr. O’Brien and Mr. Warwick went together to see defendant and at her home an option was signed by defendant giving the plaintiff the right, in consideration of $1 then paid, to purchase the premises at any time within 90 days for the sum of $7,500.
Plaintiff gave written notice of acceptance of the option within the 90 days and tendered the purchase price later after an examination of the title. Defendant refused to perform the contract, claiming that Mr. Warwick represented to her, the day the option was given, and when Mr. O’Brien was absent, that he could sell the premises for $7,500 with $100 down; that she did not understand the various kinds of papers that might be used in arranging an option for the sale of land ; that Mr. O’Brien wrote out the paper and talked with Mr. Warwick and she did not understand what they were saying or what they were writing and Mr. Warwick put the pen in her hand and said, “Just put your name down there,” and she put her name down without thinking; that Mr. O’Brien and Mr. Warwick were in her house about 15 minutes and she expected Mr. Warwick would come back and explain things but .he did not, and she called up Mr. Black, an attorney, and asked him to come over and see what the paper stated, that she could not make it out; that she did not know the paper was an option and would not have signed it if she had known; that when she learned the nature of the paper she caused notice to be given to plaintiff’s agent of her want of understanding of the matter and of her repudiation of the option.
The learned circuit judge was of the opinion that defendant did not comprehend the nature or effect of the paper she signed and
“that the variance between a contract of sale which it is apparent Mrs. Murray believed she had signed, and the option in question, is so great that the minds of the parties did not meet. Also that the disparity between the experience and capacity of Mr. O’Brien, well trained for such transactions, and the lack of such training and capacity on the part of Mrs. Murray is so great that the parties did not meet on equal footing. Proper pains was not taken to advise her as to the real character of the instrument she signed.”
The price fixed in the option appears to have been a fair one at that time and within $500 of the amount for which she had for some time been trying to sell the premises, but after the date of the option there was a sharp rise in the value of the premises.
Upon the hearing defendant was permitted to give the conversations she had with Mr. Warwick and her attorney. Mr. Warwick was her agent and she ought not to have been permitted to give the conversation she had with him in the absence of plaintiff’s agent before she signed the option, neither can she plant any right to relief upon the acts of her agent or on representations made to her by him or want of explanation by him without connecting plaintiff’s agent therewith. The conversation between defendant and her attorney should-have been excluded when objected to. Her state of mind cannot be shown by self-serving statements made to her attorney. It was proper to show that she at once consulted an. attorney, but inadmissible for her to show what she said to him. The trial judge let such testimony in to show her state of mind. Self-serving statements cannot be introduced for such a purpose.
In considering the question of defendant’s want of understanding of what she was doing when she signed the option, the connection with the matter of defendant’s agent, to whom she sent plaintiff’s agent for the purpose of the negotiation, must be kept in mind. Plaintiff’s agent, having been sent by defendant to her agent, had a right to assume that such agent had fully explained to defendant the proposition when he carried it to her and came back and, therefore, defendant when she signed the option by advice of her agent, knew what she was doing. Defendant cannot be freed from the contract on the ground that her agent, either in the absence or presence of plaintiff’s agent, did not explain to her that $1 instead of $100 was to be paid down and that the paper she was sign ing was an option. It is not sufficient, for defendant to set up her want of understanding of the option she signed. 'The blame for her lack of understanding of the true import of the paper cannot be put upon plaintiff’s agent in the absence of misrepresentation by him or of conduct leading her into mistake or bringing home to plaintiff’s agent knowledge of her want of understanding and therefore of need to inform her.j If we should hold that the option was void if she was mistaken as to its import when she signed and it was the duty of plaintiff’s agent to make the matter so clear to her by explanation beyond the writing as to preclude her from being mistaken, we would have to overturn the safe rule of law, that a unilateral mistake arising from lack of understanding on the part of the party signing an option, undisclosed to and undiscovered by the other party, and not induced by misrepresentation, and with opportunity open to the party to have full information, will not release one who signs a contract with ability and opportunity to read the same.
The record is barren of evidence that the giving of the option was induced by any fraud, actual or constructive, practiced by plaintiff’s agent or by any misrepresentation made by him or any mistake on the part of defendant induced by anything he said or did.
Defendant cannot urge that the contract was inoperative because plaintiff did not tender payment within the 90-day period. The delay arose out of the failure of defendant to furnish a suitable abstract as she had agreed. ' Having determined that she would not perform the contract at all defendant is in no position to urge that she is released from performance on the ground that time of payment was of the essence of the contract.
It is true that acceptance of the option had to be in writing, but upon the hearing of the suit brought by the Standard Oil Company for specific performance of the contract, made such by the written acceptance of the option signed, “Standard Oil Co. (Ind.) E. P. Galbreath, Mgr.,” it would have been senseless to spend time showing the authority of Mr. Galbreath.
The provision in the option releasing plaintiff if an ordinance or permit could not be obtained to conduct its business upon the premises, or if obtained, if it should be revoked before the consummation of the purchase, did not survive the notice of acceptance and tender of full performance and constitutes no defense. Recognizing the rule that specific performance of contracts is not a matter of strict legal right but resting in the sound discretion of the court to be granted or refused according to the circumstances of the particular case, we have reached the conclusion that under the evidence the established principles of equity require specific performance in this case, and the decree below is reversed and a decree will be entered here granting specific performance of the contract with costs to appellant.
Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Moore, J.
Plaintiff brought certiorari proceedings in the Bay circuit court against the drain commissioner of that county and three special commissioners to set aside proceedings in establishing a drain across plaintiff’s lands in Monitor township. To review' a judgment sustaining the drain proceedings, he brought the case here by writ of error.
We quote from the brief of counsel:
The questions that arise are the following:
“1. Did the partial view made by thei commissioners comply with the requirements of the statute?
“2. After the partial view made by the commissioners, could they legally disregard the sworn testimony at the hearing and follow the unsworn statements?”
The statutes involved are sections 4886, 4887 and 4888, 1 Comp. Laws 1915. In the first of these sections is the following:
“Such court shall immediately upon the appointment of such commissioners and with the concurrence of the county drain commissioner, appoint a time and place, such time to be not less than five nor more than fifteen days thereafter, at which time such special commissioners shall meet the county drain commissioner and other parties, who have not released the right of way, to consider the matters and things with respect to which they have been appointed.”
In section 4887 appears the following:
“The said special commissioners, with the county drain commissioner and the other parties in interest who may be present, who have not released the right of way for said proposed drain, shall meet at the time and place ordered by said court and proceed at that time, or at any time to which they may adjourn, to view such premises, and for such purpose they shall have the right to enter upon any lands traversed by the route of the proposed drain.”
In section 4888 appears the following:
“The said jury or special commissioners shall hear the proofs and allegations of the several parties in interest, and shall ascertain and determine the necesr sity for such drain, and for the taking of such private property for the use and benefit of the public for the purpose thereof.”
In the instant case special commissioners were duly appointed. They and the drain commissioner made what we will designate an original return in which it is stated that before special commissioners were appointed certain releases of right of way' had been obtained and arrangements had been made for the release of the right of way on other property. We quote:
“Also that a release had been executed for all lands traversed by the branch of said drain outside of plaintiff’s land, before the appointment of special commissioners. * * *
“That in accordance with the statute, said special commissioners of the drain, the drain commissioner and other parties in interest, who were present and who so desired to do, and who had not released the right of way for said proposed drain, met at the time and place ordered by said court and proceeded to view such premises, and in accordance with their right, entered upon such lands as they saw fit and deemed necessary to enter upon, traversed by the route of said proposed drain. * * *
“That said special commissioners did not go upon some of the lands and premises described in the affidavit attached to the writ of certiorari in this cause, because said lands had already been released to the said drain commissioner of said county for right of way.
“That said special commissioners did traverse said drain to such an extent as in their judgment was necessary for them to arrive at the determination that they have arrived at, and that they did enter upon said lands as in their judgment it was necessary for them to enter upon in order to arrive at the determination that they arrived at, and that they were not required under the law to traverse every foot of said proposed drain or to enter upon every piece of land traversed by the same. * * *
“That thereupon certain persons sworn to give testimony before said special commissioners and certain other persons made verbal and sworn statements before said commissioners, and no person who desired to be sworn was refused to be sworn in connection therewith, and that no objection was made to receiving unsworn statements from any person by any person interested in the matter of the said Fischer drain. Hí # H*
_ “That at the hearing before said special commissioners all persons in interest were permitted to present such facts and_ matters as they desired to present before said commissioners, and that said commissioners, after all of the facts and matters presented by parties in interest had been presented to them, arrived at the determination embodied in their return hereto attached. * * *
“That the said special commissioners did view the premises described in the survey and affected by said drain, as required by law. * * * That legal and competent proof was received by said special commissioners in view of the necessity of said dirain and the taking of plaintiff’s private property for the purpose thereof.
“That the special commissioners, in arriving at their decision, did not disregard the legal proofs offered at such hearing as to the necessity of said drain and the taking of plaintiff’s property for the purposes thereof. That said special commissioners, in making their award did follow the valid proofs offered at said hearing on the subject of compensation and damages.to plaintiff.”
In an amended return they describe more in detail the lands which they did not actually view. We again quote:
“That making return to the tenth paragraph of said petition, they admit that several persons made verbal and sworn statements to sustain and support the alleged necessity of said drain, and the taking of private property for the right of way through, and they admit that such persons were not sworn and that no sworn or verified proofs were offered or received in support thereof.
“That making further return to the eleventh paragraph of said petition, they admit that-plaintiff and other persons who disputed the necessity of said drain and the necessity of taking private property therefor, were sworn and gave testimony in opposition to the necessity of said drain and the taking of private property for the right of way thereof; and they admit that such persons were the persons named in said paragraph of said petition, and they admit that their testimony was the only sworn verified testimony offered or received at said hearing.”
The return indicates that the land not actually traveled over by the commission was land to which the right of way had been released. It seems to be the contention of the plaintiff that the commissioners must view every description of land which is traversed by the drain. The statute does not so say. It is a matter of common knowledge that if one views the line of a proposed drain at frequent intervals he will get an intelligent idea of the situation even though he does not view every small description of land traversed by the drain. There does not seem to be anybody complaining about this drain and its location but the plaintiff, and he is not questioning the necessity of the drain. We quote from the brief of his counsel.
“Plaintiff’s lands are not used for agriculture but bear extensive and valuable growing timber, which he had carefully preserved and cleared of undergrowth to aid the timber’s development, and which would have to be cut down and destroyed by the establishment of the drain as proposed. The proposed course of the drain was to be through this growing timber. The destruction of the timber could easily be avoided by establishing the proposed drain on the east or west line of plaintiff’s land, to which plaintiff would not object. On the hearing before special commissioners, Edward Wilhelm, a competent surveyor and civil engineer, who had made an examination of the premises, testified that the. drain could easily be placed on plaintiff’s east line, thus accomplishing all that would be accomplished by the proposed course of the drain and without injury to plaintiff, and that said east line would be a more feasible course for the drain because, it was a quarter section line upon which there would, some day be a highway. The proposed course would; damage plaintiff to the extent of $8,000.”
The commissioners were on the premises owned by the plaintiff and return:
“That Edward Wilhelm testified that the east line of plaintiff’s said property would be more feasible as a course for said drain because it was a section line upon which there would be some day a highway, and these special drain commissioners further ascertained that the said east line is not a section line on which some day there would be a highway. That said special commissioners viewed the premises of said plaintiff and are of the opinion that the award made by them; for damages is a just and proper award and full compensation to said plaintiff on account of any damages that he may have sustained on account, of the construction of said proposed drain.”
Complaint is now made that the evidence as to the necessity of the drain was unsworn. There is nothing to indicate that any claim of this sort was made at the hearing. The statute says the commissioners shall hear the “proofs and allegations.” We do not think the plaintiff has made such a showing as to invalidate the proceeding. See Township of Swan Creek v. Brown, 130 Mich. 382.
The judgment is affirmed, with costs to the appellees.
Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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] |
Bird, J.
In April, 1912, plaintiffs, who were general agents of the New England Mutual Life Insurance Company, entered into a written contract with one Neil I. McArthur, constituting him a special agent for the purpose of soliciting life insurance in certain Michigan territory. The contract provided that to insure the faithfulness of McArthur in carrying out the terms of the contract he should execute a satisfactory bond and deliver it to the plaintiffs. A bond with a penalty of $1,000 was prepared and signed by McArthur as principal and by defendants: as sureties, and delivered to plaintiffs. McArthur soon after entered upon the work. He appears to have been without means and plaintiffs advanced to him, from time to time, certain sums of money to pay his living expenses until his employment should become more productive. .After a time he quit the employment, and when he did so he was indebted to the plaintiffs for such advancements in the sum of $1,400. He was unable to pay the same. Demand was made upon the defendants as sureties on his bond. They refused to respond, so this suit was begun to enforce payment of the penalty of the bond.
The claim was resisted by the sureties on the ground that the demand was not within the terms of their contract of suretyship. They took the .position that their suretyship had reference to McArthur’s faithfulness in the business of his employer, and not to private loans made to him by the plaintiffs. The matter went to a hearing and defendants’ contention was sustained. Plaintiffs are here asking for a review of the proceedings.
The contract obligation which the sureties incurred in signing McArthur’s bond was:
“The condition of this' obligation is such that, whereas, said general agents have appointed Neil I. McArthur, of Detroit, their agent to represent the New England Mutual Life Insurance Company, under said general agents for Michigan; now, therefore, if said Neil I. McArthur shall faithfully perform all his duties as said agent, and account for and pay over all sums of money which he may receive for said general agents or said company, and pay and discharge all his indebtedness to said general agents and said company, then this bond shall be void; otherwise it shall be and remain in full force and virtue.” * * *
The question raised is “Did defendants, by signing this bond, obligate themselves to pay to plaintiffs moneys which they advanced to McArthur for living expenses?” Plaintiffs rely, in support of their contention, upon the following specific language of the bond:
“And pay and discharge all his indebtedness to said general agents and said company.”
We can hardly agree with counsel that this language creates an obligation upon the part of the sureties to pay McArthur’s personal indebtedness to some officer of the company who was obliging enough to advance him living expenses. This language, when considered in connection with the general purpose for which the bond was given, would suggest an obligation to pay moneys which McArthur had received while acting within the scope of his duties as special agent of the company. The bond was required to protect the company in matters in which McArthur should represent it and not to protect personal loans made by officials. The language itself does not support the claims made for it by counsel. McArthur promises to pay and discharge all his indebtedness to said plaintiffs, not as individuals but as general agents. This suggests indebtedness to which the plaintiffs, as general agents, were entitled.
The query might arise under this view why the wording of the bond required McArthur to pay his indebtedness to the general agents as well as to the company. This is quite likely explained by the following language which precedes this requirement:
“And account for and pay over all sums of money which he may receive for said general agents or said company.”
Both names having been inserted here is a probable reason for both being inserted in the language relied on.
Again it is said that section two of the contract supports plaintiffs construction. This section recites McArthur’s duties to the company and among them the following occurs:
“The said party of the second part shall be responsible to the said general agents for all moneys, notes, receipts and policies advanced to or collected by him.”
The words “moneys advanced” are pointed out with the argument that this shows McArthur’s obligation to plaintiffs was within the terms of the bond. We are unable to agree with this reasoning. This, language clearly has reference to McArthur’s official work. It does not refer to moneys advanced to McArthur on personal account or on any account other than as m officer of, the company. But it does refer to moneys, notes, receipts, and policies which might come to his. possession in an official way. Reference to the notes, receipts, and policies certainly has reference to his. official duties. The word “moneys” is classed with, them and should receive the same construction. If we keep in mind, while trying to find the meaning of the language, that McArthur was to occupy a position on trust with the insurance company, and that the idea back of the bond was to protect the company against loss by reason of recreancy to his trust, we have little difficulty in reaching the conclusion that the bond covers only his official connection with the company and not personal loans by the officials.
In construing the language of the bond it was proper to look into the contract as an aid in so doing. 9 C. J. p. 36. It was said in New York Life Ins. Co. v. McDearmon, 133 Mo. App. 671 (114 S. W. 57), a case very similar on the facts to the present one, that:
“The general rule is well settled in controversies arising on the construction of bonds, with conditions for the performance of duties, preceded by recitals, that, where the undertaking is general, it shall be restrained and its obligatory force limited within the recitals. Bell v. Bruen, 1 How. (U. S.) 169; Sanger v. Baumberger, 51 Wis. 592 (8 N. W. 421); National Mechanics' Banking Ass’n v. Conkling, 90 N. Y. 116; Marquette Opera House Building Co. v. Wilson, 109 Mich. 223; Blades v. Dewey, 136 N. C. 176 (48 S. E. 627); Burlington Ins. Co. v. Johnson, 120 Ill. 622 (12 N. E. 205).”
This rule was applied in Marquette Opera House Building Co. v. Wilson, supra, where a similar question was discussed and determined. It is also recognized in White Sewing Machine Co. v. Mullins, 41 Mich. 339. The bond in the present case recited the fact that McArthur had been employed as an agent for the company in Detroit and the inference is very strong that the obligation of the sureties! was to be confined to McArthur’s official relations and deal-lings within the scope of his duties as such agent.
We are satisfied with the conclusion reached by the trial court and his judgment will be affirmed.
Steere, C. J., and Moore, Fellows, Stone and Sharpe, JJ., concurred. Clark, J., did not sit.
The late Justice Brooke took no part in this decision. | [
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Clark, J.
The bill was.filed to enjoin defendant from collecting from its passengers the rate of fare specified in Act No. 382 of the Public Acts of 1919, and to compel the charging at franchise rates. The motion of defendant that all proceedings be stayed perpetually was granted. Plaintiffs have appealed. The facts are stated sufficiently in the case of Attorney General v. Railway, 210 Mich. 227, and the holding there is decisive of the legal questions here involved.
We do not consider the question of res adjudicata, but we have concluded to treat defendant’s motion as a motion to dismiss. Decree will be entered dismissing the bill of complaint with costs to the defendant.
Steere, C. J., and Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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Stone, J.
This case is in this court upon a writ of error sued out by the plaintiff to review a judgment entered upon a directed verdict for the defendants, in the court below. Plaintiff is a domestic corporation domiciled at Clinton, Lenawee county, with Walter P. Cotton as its secretary and treasurer; and he and Jacob Reiser, another stockholder, were at the time this cause arose the active managing officers and stockholders of the company. Defendants are copartners, trading as J. F. French & Company, composed of Jay F. French of Grand Rapids, and John C. Wallace of Hart, Michigan. Both parties were dealers in farm products.
The declaration in substance alleges an engagement between the parties whereby plaintiff was to expend money and render service in behalf of defendants. We quote from the declaration:
“And said defendants became and were desirous about the month of February, 1918, of entering into an arrangement with plaintiff, whereby plaintiff, by its officers, managers and employees, should purchase large quantities of hay for defendants, from farmers and producers in and about the village of Clinton, and whereby an agreement and understanding was reached, by and between plaintiff and defendants and the agents, officers and authorized employees of each, whereby plaintiff, in substance, was to make purchases of clover and timothy hay of and from farmers in and about Clinton aforesaid, and make payment therefor, plaintiff to do, or cause to be done, all work surrounding the purchase of the same, to pay and discharge the cost and expense of baling, to attend to loading on cars to be shipped to defendants, at such destination, or to such parties as defendants should direct, and for all of which, defendants were to pay, or reimburse plaintiff for the moneys actually paid and expended to the farmers, or producers of such hay, the actual cost of baling the same, and an additional' sum or amount of $2 per ton for each and every ton so purchased!”
The bill of particulars of plaintiff’s demand, furnished upon demand of defendants, stated
“that the following is a bill of particulars or statement of hay purchased by plaintiff for defendants and shipped, as alleged in the declaration filed in said cause, and said action being brought to recover the balance of moneys paid therefor, and a commission of two dollars per ton for making such purchases,” etc. '
The plea was the general issue, with a notice that the alleged agreement mentioned in the declaration was by its terms not to be performed within one year from the making thereof, and that neither said alleged agreement nor any note or memorandum thereof was in writing.
Michael P. Wallace is a brother of defendant Wallace; Michael resided at Clinton. Michael was called by the plaintiff for cross-examination under the statute at the trial. It appeared in evidence that in February, 1918, Michael entered into an agreement with defendants in relation to buying hay. The plan was that he attend to the buying and shipment of the hay, and he and defendants were “to split the profits and losses.” Following out that agreement Michael negotiated orally with plaintiff and made an oral arrangement with plaintiff to buy hay for defendants. There was no question raised as to Michael’s authority to act for the defendants. It was agreed that the plaintiff company was to look up and buy the hay of the farmers, attend to the baling of it and load it on the cars, and plaintiff was to pay the farmers and balers. The persons from whom the purchases were made were to deliver at the railway station, and plaintiff was to load it on the cars. For performing its part of this contract plaintiff was to be paid by defendants the amount, or sums, that it had paid out, or advanced to the farmers for the hay; also the amount that it had expended in baling the hay; also $2 a ton for the work, and other services of plaintiff in connection with the matter.
Under that arrangement plaintiff began to purchase and secure the hay desired by defendants. Mr. Reiser, of plaintiff company, attended mainly to the buying, and baling and loading of cars. Michael P. Wallace generally went with Mr. Reiser .into the country, and saw what hay was bought. When the hay thus purchased of farmers was delivered at the railway station, Michael would bill out the hay, and pay plaintiff the money it had expended in connection with that car load, and also the stipulated $2 per ton for plaintiff’s work, or services, in connection with the transaction. Defendants sent the money for this purpose to Michael P. Wallace and he deposited it in a Clinton bank, in his name under an account as “agent,” and gave his check upon this account to plaintiff in payment. This continued until about May 25, 1918, and up to that time 26 car loads of hay had been shipped. Defendants had paid plaintiff, or reimbursed it, for all moneys expended in connection with the 26 car loads, and the $2 per ton for plaintiff’s services, and labor on these cars, with the exception of a balance of $176.65 in favor of plaintiff; and for that amount the trial court directed a verdict in favor of plaintiff.
At that time there were 22 more car loads of hay that had been purchased of the farmers under this arrangement between plaintiff and defendants. Plaintiff had done the work of looking it up, negotiating for and buying it; had paid the farmers for it (advancing the money for this purpose) and supervised the baling, and paid for baling it. The defendants refused, or neglected to instruct plaintiff where to bill or ship this hay, and repeated efforts were made by plaintiff to get defendants to act, but nothing resulted from those efforts. Plaintiff could not get shipping directions from either Michael P. Wallace or defendants, and this left plaintiff with 22 car loads of this hay on hand. Plaintiff had to take the hay from, the farmers, as it already had been paid for by it, and plaintiff had already paid the balers. It had advanced the funds for these purposes. Plaintiff disposed of the 22 car loads of hay for the best price obtainable, the market had gone down, and they sold for $3,605.09 only. For that hay, including cost of baling, plaintiff had advanced or expended. $6,566.19, and in addition was entitled to $557.79, as the $2 per ton compensation for services, or work in relation to the transaction, making $7,123.98, or leaving a balance of $3,518.89 that plaintiff had expended in relation to this transaction. Some of the hay-secured under this arrangement was purchased from one William Dewey. It was the plaintiff’s claim that before it negotiated with Dewey for this hay Mr. Reiser asked Michael P. Wallace what to do about buying the Dewey hay, and Wallace said buy it, and this after Wallace had inspected the Dewey hay. There were 170 tons of the Dewey hay. Some of it was taken by defendants through Michael P. Wallace, but about 130 tons of it were not shipped. The foregoing is substantially the claim of the plaintiff. There was evidence in support of the claim.
At the close of plaintiff’s evidence, the defendants made a motion for a directed verdict in their favor. The court adopted the position of defendants and directed a verdict for plaintiff for $176.65, and a verdict against plaintiff for the balance of its claim.
In its charge to the jury directing the verdict, the court stated that it appeared from the undisputed testimony that these cars of hay were loaded from time to time,- and were not to be paid for by defendants until they were inspected, loaded and billed to the destination indicated by the defendants; that inspection was not to take place until after the hay had been baled and delivered to the station; and that the right of rejection after inspection was retained by the defendants. That under these facts the contract became what at law is known as a severable contract; that is, each separate car load of hay was a separate contract between the parties; that there was no delivery until after inspection and loading;’ that being the rule of law governing the transaction, it followed that' all future attempted deliveries pursuant to the terms of this oral contract would come within the provisions of the statute of frauds, which provides that a contract for the sale of goods of more than $100 in value shall be in writing, signed by the parties to be charged. So each subsequent attempted delivery was void under the statute, and it rested with the defendants to accept it, or not accept, as they chose. Treating that contract as one of sale of goods, the court also held it too .vague and uncertain to be enforced; that it lacked mutuality and was not binding on the parties. It concluded the charge in these words;
“And therefore, under the most elementary rules of law, the contract was void for want of mutuality, because no contract is valid unless both parties stand on an equal footing, so far as the enforcement of the respective rights and -duties of the parties are concerned. If the plaintiff can compel the defendants to accept and pay for these hundreds of tons of hay which it bought, but on the other hand, the defendants, in case the plaintiff had seen fit to breach the contract, would have been remediless to compel the plaintiff to deliver a single ton of hay, then the con tract must be void, under the rules of law applicable to such cases. And so we have reached the conclusion that this contract, even though it were proven as alleged, is an unenforceable contract; it is a one-sided contract; only one party could enforce it; the other could not. It is void for lack of mutuality.”
There was a motion for a new-trial which was denied, but as appellant did not except to the refusal, .the matter is unimportant.
The single assignment of error available to appellant is that the court erred in directing a verdict in favor of defendants for all of the claim of plaintiff except the sum of $176.65.
The plaintiff claimp, and we think with much force, that this is not a casé where any of the rules governing the relation of vendor and vendee apply, but rather one controlled by the rules relating to employer and employee. It was only by treating the case as one of sale that the court was able to invoke the statute of frauds. It should be noted in passing that no notice was given under the general issue of the provision of the statute of frauds referred to by the court, as required by section 2 of Circuit Court Rule No. 23. The notice was that the alleged agreement was not to be performed within one year, and was not in writing. No claim of defense was made under that notice. That such defense would not have been available, see cases cited under section 11981, 3 Comp. Laws 1915.
We have looked in vain for any evidence to warrant the statement of the court in its charge that the right of rejection after inspection was retained by the defendants. There is no evidence that any such right was claimed or exercised. But we do not deem it important. The court having directed a verdict against the plaintiff, we must take the most favorable view of the testimony in support of its claim that this was a case of employment of the plaintiff by the defendants to purchase for them hay, it advancing the money to pay for the same, and' for the baling, hauling, etc., for a given price or sunl, to wit, $2 a ton, and that it was not a case involving the .sale of hay by the plaintiff to the defendants. This in our opinion (the contract having been oral) presented at least a question of fact for the jury, and the verdict should not have been directed. It should be borne in mind that this is not a case where the plaintiff is suing for profits under the terms of a contract for the sale of goods, but it is a case where the plaintiff is seeking to recover for services rendered and money advanced in the course of the employment. Such, at least, is the claim of the plaintiff supported by the- evidence, thus.presenting a question for the jury under proper instructions. Even if it can be said that there is some evidence in support of defendants’ claim that it was a case of sale, yet the contract resting in parol, with conflicting evidence, if was still a matter for the jury.
The fact that this contract might be terminated at any time, is no reason why plaintiff should not have pay for work already done and expenditures already made, under the contract. In our opinion the trial court erred in directing a verdict, and in not submitting the case to the jury under proper instructions.
The judgment of the circuit court is reversed with costs to appellant, and a new trial granted.
Steere, C. J., and Moore, Wiest, Fellows, Clark, and Sharpe, JJ., concurred. Bird, J., did not sit. | [
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Fellows, J.
In 1887 plaintiff’s predecessor in title was the owner of the west one-third and defendants’ predecessor in title the owner of the east two-thirds of lot 2, block 69, of the city of Muskegon. The lot is located on Western avenue in the business section of the city. On May 19, 1887, the then owners of the lot being desirous “jointly to erect a three-story brick block or building on their said premises” entered into a written contract of some length to which was attached a schedule of specifications also of considerable length. The details of this contract and specifications need not be entered into except as they may become necessary. The building was erected by defendants’ predecessor, covering the entire lot and plaintiff’s -predecessor paid him for his portion of it $5,100. There was a stairway between the two properties, one-half on each of them,' there was a; skylight, toilet rooms and other conveniences designed for common use. The city water was taken into the building on the premises of defendants’ predecessor and connected with those of plaintiff’s predecessor. For over 30 years the parties and their predecessors in title used the stairway and conveniences in common. Friction then arose and the defendants threatened to cut off plaintiff’s water supply. Thereupon this bill was filed seeking injunctive relief and a partition of the premises occupied by the stairway. The injunctive relief was granted and the partition was refused. Both parties appeal.
Plaintiff’s Appeal. Plaintiff appeals from that portion of the decree which denies partition of the lands upon which the stairway rests. The trial judge was of opinion that defendants had acquired prescriptive rights to the use of the stairway by adverse possession and that the case was controlled by First National Bank v. Vanden Brooks, 204 Mich. 164. An examination of the contract and specifications is quite persuasive that the parties contemplated the erection and maintenance so long as the building remained of the stairway for their common use. But if we assume (and this is the most favorable position to plaintiff that may be assumed) that the contract gave defendants no right to the use of the land for stairway purposes, we are then confronted with the undisputed fact that for over 30 years defendants have used this stairway without protest. The case cited is controlling. In the recent case of St. Cecelia Society v. Universal Car & Service Co., 213 Mich. 569, where the question of a prescriptive right to an easement was involved we said, speaking through Mr. Justice Stone:
“The elements necessary to give rise to a prescriptive right are the same as those of title by adverse possession, with the exception that it does not have to be exclusive.”
The instant case, so far as this question is involved, is so like the case of First National Bank v. Vanden Brooks, supra, that we do not deem it necessary to discuss it further than to say that defendants may not be deprived of this easement under color of partition proceedings.
Defendants’ Appeal. Defendants appeal from that portion of the decree which restrains them from interfering with plaintiff’s water supply and with the sewers and drains. These were expressly provided for in the contract. But defendants contend that this was but a building contract. We think it was something more than a building contract. If defendants are correct in their contention their predecessor could have cut off the water supply the day after the building was erected although plaintiff’s predecessor in title had paid one-third the cost of installing the pipes. Such a construction is too narrow;we can not follow it. The parties were then providing not only for the erection of the building but also for its future use. For over 30 years they and their successors in title have given this contract a practical construction. We think their construction a proper one; we are not inclined to disturb it.
The decree must be affirmed. In the trial court plaintiff was given but part of the relief she asked and was awarded costs. We see no occasion to disturb this award. In this court, both parties having appealed, no costs will be awarded.
Steere, C. J., and Moore, Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Clark, J.
The plaintiff caused an assessment for street improvement to be made upon two pieces of land forming a part of defendant’s roadbed of its steam railroad and upon two small pieces of land occupied by side tracks of defendant which lands were determined to be within a certain portion of the city benefited by such improvement and which portion was declared to be a proper assessment district upon which to levy assessment therefor. There was assessment for benefits against the four pieces of land in the sum of $1,249:50. There was notice of the improvement and notice of hearing of appeals from assessments on the assessment roll as required by law and final confirmation of the roll by the common council of plaintiff city. The proceedings in form were regular. The defendant did not appear at any stage of the proceedings nor did it make any objection. Plaintiff sued to recover the tax and had judgment for the amount of the assessment against defendant’s property with interest and charges in the sum of $1,515.25.
Defendant here contends that its said property so used is not susceptible of benefit from the street improvement and for that reason cannot be assessed. Plaintiff’s charter, Act No. 593, Local Acts of 1905, contained the following:
“Title VI, § 46: All freight houses, roadbeds, rights of way and other premises belonging to any steam railroad or railroad corporation or company within the corporate limits of the city of Grand Rapids, which are necessarily used in the operating of the respective franchises of the owners of said railroads, and the person, company, or corporation owning the same are liable for all valid unpaid assessments for public improvements hereafter made within the city of Grand Rapids and assessed against the same, but no lien shall attach thereon on account of such assessments and the payment of such assessments shall not be enforced and collected by sale of said property. Assessments of such classes of property shall be made in the same manner as the assessments of other property under- the charter of said city for special improvements, and the assessment roll for such special improvement taxes shall be prima, facie evidence in any court of the regularity of all proceedings leading up to the assessment and the making of said roll.
“Title VI, § 47: All special assessments made as aforesaid against the property of said railroad companies and the owners thereof, for public improvements, and all installments thereof, together with the interest, costs and charges thereon for enforcing the collection of the same, are hereby made and declared legal demands against each and every of said railroad or railway corporations or companies against whose property such assessments are made in favor of the city of Grand Rapids, and if any of said railroad or railway corporations or companies shall fail to make payment thereof within the time payment is required of such special assessments under the roll on which they are extended, then the city of Grand Rapids may institute an action in assumpsit or other proper legal action in any court of competent jurisdiction against the owners of said properties, and if judgment be rendered thereon in favor of said city of Grand Rapids, the same may be collected on execution out of any property of said railroad or railway corporations or companies liable to levy and sale on execution.”
Section 4226,1 Comp. Laws 1915, relative to taxing such properties by the State board of assessors, provides in part:
“The said taxes shall be payable on the first day of April, following’ the assessment and levy thereof, and shall be in lieu of all taxes for State and local purposes, not including special assessments on property particularly benefited, made in any county, city, village or township.”
Section 4001,1 Comp. Laws 1915> provides in part:
“The real property of corporations exempt under the laws of this State, by reason of paying specific taxes in lieu of all other taxes for the support of the State: Provided, That the track, right of way, depot grounds and buildings, machine shops, rolling stock and all other property necessarily used in operating any railroad in this State belonging to any railroad company, shall henceforth he made exempt from taxation for any purpose, except that the same shall be subject to special assessments for local improvements in cities and villages, and all lands owned or claimed by any such railroad company not adjoining the track of such company shall be subject to all taxes.”
Defendant has been sued as Grand Trunk Railway System, which plaintiff asserts in its declaration is a corporation. In a brief it is said that the defendant is the Detroit, Grand Haven & Milwaukee Railway Company and that the same is a specially chartered railway company of which section 9, Act No. 140, Laws of 1855, provides:
“The said company shall, on or before the first day of July, pay the State treasurer an annual tax of one per cent, on the capital stock of said company paid in, which tax shall be in lieu of all other taxes, except for penalties imposed upon said company by its act of incorporation, or any other law of this State. The said tax shall be estimated upon the last annual report of said corporation.”
Even if defendant is specially chartered, a point which cannot be determined upon the record, the language of the claimed charter “in lieu of all other taxes” would not exempt defendant from payment of taxes for local improvements. See Lake Shore, etc., R. Co. v. City of Grand Rapids, 102 Mich. 374 (29 L. R. A. 195), where the subject is fully considered.
It is a legislative policy of this State that railroad properties shall be subject to tax for local improvements. But if the track, roadbed, or right of way of a railroad is not susceptible of benefit from a'local improvement a taxing of such property for such improvement would be wanting in the due process of law required by the Constitution. Whether such property may be so taxed is a question upon which the courts are not in harmony. In this State it was held in Lake Shore, etc., R. Co. v. City of Grand Rapids, supra, that a tax upon a part of plaintiff’s roadbed and a freight house for a local improvement could not be collected by a sale of the property but from the opinion we infer that the court thought the assessment and tax valid. In Detroit, etc., R. Co. v. City of Grand Rapids, 106 Mich. 13 (28 L. R. A. 793), it was held by a divided court (quoting from syllabus):
“A section of the right of way of a railroad company, occupied by its tracks and used for no other purpose, cannot be assessed for the .expense of improving a street which crosses it, under a city charter requiring such assessments to be made according to benefits received.”
We think this holding must be overruled. In the instant case a Federal question may be raised that the taxing violates the Fourteenth Amendment. The following opinion of the United States Supreme Court is controlling:
“This is a proceeding under the Kentucky Statutes, § 2834, to enforce a lien upon a lot adjoining a part of Frankfort avenue, in Louisville, for grading, curbing and paving with asphalt the carriageway of that part of the avenue. The defendant, the plaintiff in error, pleaded that its only interest in the lot was a right of way for its main roadbed, and that neither the right of way nor the lot could or would get any benefit from the improvement, but on the contrary rather would be hurt by the increase of travel close to the defendant’s tracks. * * *
“The plea plainly means that the improvement will not benefit the lot because the lot is occupied for railroad purposes and will continue so to be occupied. Compare Chicago, etc., R. Co. v. City of Chicago, 166 U. S. 226, 257, 258 (17 Sup. Ct. 581). That, apart from the specific use to which this land is devoted, land in a good-sized city generally will get a benefit from having the streets about it paved, and that this benefit generally will be more than the cost, are propositions which, as we already have implied, a legislature is warranted in adopting. But, if so, we are of opinion that the legislature is warranted in going one step further and saying that on the question of benefit or no benefit the land shall be considered simply in its general relations and apart from its particular use. See Illinois Cent. R. Co. v. City of Decatur, 147 U. S. 190 (13 Sup. Ct. 293). On the question of benefits the present use is simply a prognostic, and the plea is prophecy. If an occupant could not escape by professing his desire for solitude and silence, the legislature may make a similar desire fortified by structures equally ineffective. It may say that it is enough that the land could be turned to purposes for which the paving would increase its value. Indeed, it is apparent that the prophecy in the answer cannot be regarded as absolute, even while the present use of the land continues — for no one can say that changes might not make a station desirable at this point; in which case the advantages of a paved street could not be denied. We are not called on to say that we think the assessment fair. But we are compelled to declare that it does not go beyond the bounds set by the Fourteenth Amendment of the Constitution of the United States.” Louisville, etc., R. Co. v. Paving Co., 197 U. S. 432 (25 Sup. Ct. 466).
The holding in Chicago, etc., R. Co. v. City of Milwaukee, 89 Wis. 506 (62 N. W. 417, 28 L. R. A. 249), resembles the holding in Detroit, etc., R. Co. v. City of Grand Rapids, supra, but in a later case it is said:
“The question, therefore, arises: Are lands of a railway company, used solely for a right of way, subject to special assessments for street improve- meats? Counsel for plaintiff contend they are not, because under the laws of this State and the charter of the defendant city special assessments are limited by and cannot exceed the special benefit which the abutting property receives by reason of the improvement, and in Chicago, etc., R. Co. v. City of Milwaukee, supra, this court held as a matter of law that the necessary right of way of a railway company is not specially benefited by the improvement of a street in front of it. * * * It is true the decision in such case was based in part upon the fact that it could be said, as a matter of law, that the right of way of a railway company was not benefited by the improvement of the street upon which it abuts, but the decision rested chiefly upon the ground that, in the absence of an express statute authorizing' an assessment of the tracks' and necessary right of way of a railway company, the assessment and sale thereof for benefits by local improvements could not be sustained. And it was held that in the statute exempting railway property from taxation, the clause ‘except that the same shall be subject to special assessments in cities and villages’ was not a sufficiently specific declaration of legislative intent to subject it thereto, as the section was intended merely to confine the exemption to the subject of general taxation. So it will be perceived that if the court had found in the statutes a sufficiently clear declaration of legislative intent to subject railroad property to special assessments, the decision would have been otherwise. That case was decided in 1895. , Subsequently the legislature enacted chap. 425, Laws of 1903, and in Chicago, etc., R. Co. v. City of Janesville, 137 Wis. 7 (118 N. W. 182, 28 L. R. A. [N. S.] 1124), this court had occasion to consider the effect thereof. It referred to the case of Chicago, etc., R. Co. v. City of Milwaukee, supra, and used this language with reference thereto and the enactment of the subsequent statute:
“‘In the discussion of the question, it was said that the principle is established that “such a result cannot be effected under the power of taxation without express legislative authority, and that general language in such statutes will not he held to authorize such a result.” ’ * * *
“While the language was used in a tease that did not from necessity' involve the question, because the assessment for the sewer was also sustained under the exercise of the police power, irrespective of special benefits, still it correctly expresses the purpose and power of the legislature in the enactment of chapter 425, Laws of 1903. What was said in Chicago, etc., R. Co. v. City of Milwaukee, supra, to the effect that it is clear, as a matter of law, that a railway company’s right of way is not benefited by the improvement of the street upon which it abuts, must be deemed to be overruled. Such legislation is in accord with the result in many well-considered cases, and is in harmony with the rule approved by the Supreme Court of the United States that on the question of benefits or no benefits the land shall be considered simply in its general relation and apart from its particular use. Louisville, etc., R. Co. v. Paving Co., supra; Illinois Cent. R. Co. v. City of Decatur, supra; City of Seattle v. Railroad Co., 50 Wash. 132 (96 Pac. 958); Burlington, etc., R. Co. v. Spearman, 12 Iowa, 112; Heman Construction Co. v. Railroad Co., 206 Mo. 172 (104 S. W. 67, 12 L. R. A. [N. S.] 112, 12 Ann. Cas. 630), and cases cited in Chicago, etc., R. Co. v. City of Milwaukee, 89 Wis. 517 (62 N. W. 417), and note to same in 28 L. R. A. 249.” Chicago, etc., R. Co. v. City of Milwaukee, 148 Wis. 39 (133 N. W. 1120).
The rule is stated in 25 R. C. L. p. 117, thus:
“Property belonging to quasi-publie corporations, such as railway and other transportation companies, is controlled by substantially the same rules governing other cases of assessments for local improvements, and railroad property, other than the roadbed or right of way, has been held liable in almost every instance wherever it has been benefited by the local improvement. As to whether a railway roadbed or right of way may properly be assessed for local improvements, the courts are not in harmony. There are numerous cases which deny the right to levy an assessment on such property, but while some of these base their holding entirely on the nature of the property, and in others a distinction is drawn between cases where the land is owned in fee by the railroad and those in which it has merely an easement, the question in most of them seems to have been one of fact, or the decision was based on the wording of a particular statute, and the more generally accepted view at the present time is that in the absence of statute to the contrary a railway roadbed or right of way is subject to assessment for local improvement when benefited thereby.” * * *
For review of the cases bearing upon the question see 28 L. R. A. 249; 28 L. R. A. (N. S.) 1124; 12 L. R. A. (N. S) 112; 40 L. R. A. (N. S.) 935; 25 R. C. L. pp. 117, 118. See, also, Figg v. Railroad Co., 116 Ky. 135 (75 S. W. 269); Winona, etc., R. Co. v. City of Watertown, 1 S. D. 46 (44 N. W. 1072); Northern Indiana R. Co. v. Connelly, 10 Ohio St. 159; Peru, etc., R. Co. v. Hanna, 68 Ind. 562; Illinois Cent. R. Co. v. City of Matoon, 141 Ill. 32 (30 N. E. 773); City of Ludlow v. Railway Co., 78 Ky. 357; Chicago & Alton R. Co. v. City of Joliet, 153 Ill. 649 (39 N. E. 1077); Burlington, etc., R. Co. v. Spearman, 12 Iowa, 112; City of Seattle v. Railroad Co., 50 Wash. 132 (96 Pac. 958); Illinois Cent. R. Co. v. People, 170 Ill. 224 (48 N. E. 215); Kansas City, etc., R. Co. v. Waterworks Improvement Dist., 68 Ark. 376 (59 S. W. 248).
The following cases are cited by counsel for defendant as supporting its contention: New York Bay R. Co. v. City of Newark, 77 N. J. Law, 271 (72 Atl. 455); New York, etc., R. Co. v. Village of Port Chester, 149 App. Div. 893 (134 N. Y. Supp. 883); City of Philadelphia v. Railroad Co., 33 Pa. St. 43; Chicago, etc., R. Co. v. City of Milwaukee, 89 Wis. 506 (62 N. W. 417, 28 L. R. A. 249); Mt. Pleasant Borough v. Railroad Co., 138 Pa. 365 (20 Atl. 1052); Allegheny City v. Railroad Co., 138 Pa. 375 (21 Atl. 763, 11 L. R. A. 520); Junction R. Co. v. City of Philadelphia, 88 Pa. St. 424; City of Bridgeport v. Railroad Co., 36 Conn. 255; New York, etc., R. Co. v. City of New Haven, 42 Conn. 279.
The weight of authority is, and we so hold, that the court may not say, as a matter of law, that the tract, roadbed, or right of way of a railroad may not be benefited or susceptible of benefit by a local improvement. No bad faith is charged and to what extent the property included in the assessment district was benefited and whether benefited or not were questions to be determined in the special proceedings. We cannot review the assessment.
See Brown v. City of Grand Rapids, 83 Mich. 101; Graham v. City of Grand Rapids, 179 Mich. 386 (Ann. Cas. 1915D, 380); opinion of Justice Hooker in Detroit, etc., R. Co. v. City of Grand Rapids, 106 Mich. at pages 17, 18 (28 L. R. A. 793).
The charter, Act No. 593, Local Acts of 1905, gives the right to recover the tax in a suit at law.
The judgment is affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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] |
Clark, J.
The State, by section 8, chap. 12, Act No. 3, Pub. Acts 1895 (1 Comp. Laws 1915, § 2782), gave villages the power to contract
““from year to year, or for a period of time not exceeding ten years, with any person or persons, or with any duly authorized corporation, for the supplying of such village or the inhabitants thereof, or both, with gas, electric or other lights, upon such terms and conditions as may be agreed; and may grant to such person, persons or corporation the right to the use of the streets, alleys, wharves and public grounds of such village as shall be necessary to enable such person, persons, or corporation to construct and operate proper works .for the. supplying of such light upon such terms and conditions as shall be specified in such contract.”
Act No. 106, Pub. Acts 1909 (1 Comp. Laws 1915, § 4842 et seq.), gave to the then Michigan railroad commission control and supervision of the business of transmitting and supplying electricity through the public highways, streets, and places of the State, and the power to regulate rates. But the act contains this exception:
“Provided, however, That the commission shall in no case have power to change or alter the price for electricity fixed in or regulated by or under any franchise heretofore or hereafter granted by any city, village or township.”
Act No. 419, Pub. Acts 1919, abolished the Michigan railroad comimission, created the public utilities commission, gave the new commission the powers and duties of the old and added thereto, and in such act the following appears, quoting from section 4:
“In no case shall the commission have power to change or alter the rates or charges fixed in, or regulated by, any franchise or agreement heretofore or hereafter granted or made by any city, village or township.”
Plainwell is a village under the general statutes. The defendant is a corporation of Plainwell. Its business is the furnishing of electric power and light to the. village and its inhabitants. In May, 1905, the village granted to defendant and defendant accepted a franchise to construct and maintain and operate within the village a system for the distribution of electricity for power and lighting for the period of 30 years. At that time another company was furnishing to the village and its inhabitants electric light and power under a franchise contract made September 8, 1904, for the term of 10 years. This contract, plaintiff consenting, was assigned to defendant who performed it according to its terms until it was abrogated by the contract next mentioned.
On March 7, 1913, the parties hereto entered into another contract to cover a period of 10 years beginning September 1, 1913, to furnish the village and its inhabitants electric light and power, at certain rates named in the contract. Since this contract defendant has furnished and still does furnish light and power at the contract rates. In August, 1920, defendant had its property appraised and claimed that for return on the investment and the value of its property a raise of rates was necessary and accordingly asked leave of the village to increase the same. The request was declined as was another request that the parties join in asking the public utilities commission, hereinafter called the commission, to fix rates.
In October, 1920, defendant filed with the commission a schedule of rates covering light and power for the municipality and its inhabitants higher than the contract rates. A copy of the schedule was served on the village with notice of said filing. The schedule was kept at defendant’s office for public inspection and a notice of an intention to charge according to this schedule was. published in the local newspaper. The new rates were to become effective November 1, 1920. Rules and regulations were also made. One of the rules stated that service would be discontinued 15 days after- reading the meters unless the bills were paid.
On November 23, 1920, plaintiff filed its bill of complaint in behalf of itself and its inhabitants for a temporary order and an injunction restraining defend ant from increasing its rates' beyond those provided by the contract and from violating the terms of the contract. A temporary restraining order was made. After hearing plaintiff was decreed the relief prayed. Defendant has appealed.
At the outset it may be stated, though counsel contend otherwise, that the bill states a case for injunctive relief.
Counsel for defendant say:
“We submit that the paramount right .to fix and adjust rates between municipal corporations and public utility companies rests entirely within the legislature of the State although municipal corporations may contract with public utility companies in regard to rates for electric current. Such a contract is subservient to this paramount right in the State to readjust and change these rates,” and cite the following cases: Boerth v. City Gas Co., 152 Mich. 654 (18 L. R. A. [N. S.] 1197); Alpena Electric Light Co. v. Kline, 180 Mich. 279; City of Monroe v. Railway, 187 Mich. 364; Traverse City v. Telephone Co., 195 Mich. 373; Traverse City v. Railroad Commission, 202 Mich. 575; Attorney General v. Railway, 210 Mich. 227; City of Kalamazoo v. Titus, 208 Mich. 252; Clements v. McCabe, 210 Mich. 207; City of Cadillac v. Telephone Co., 195 Mich. 538.
But the contention and the cases cited are not applicable. The paramount right of the State has been exercised. It is not dormant. The contract between the parties is not permissive merely. It has been made pursuant to the delegation of power by the legislature to the village (see statute above quoted). The power so delegated has not been withdrawn nor was it impaired or modified by the act of 1909. But counsel say that the agreement of March 7, 1913, was a contract, not a franchise, and that it was not therefore saved from the act of 1909 by the proviso above quoted. We think it was the intent of the legislature to save from the act control of rates fixed by a fran chise contract such as we find in this case. It does not appear that the franchise granted defendant contained any agreement or schedule respecting rates. The contract is to be regarded and treated as supplemental to the original franchise. See Lenawee County Gas & Electric Co. v. City of Adrian, 209 Mich. 52. And it is significant that a similar proviso more carefully worded, above quoted, is found in said Act No. 419, Pub. Acts 1919. Surely the legislature did not intend by the act of 1909 to give to the then commission control of the rates where the franchise proper and the agreement or schedule as to rates were in separate writings and to deny such control in those cases where the franchise proper contained the agreement or schedule as to rates. The village had the right to make this contract fixing the rates. It has now the right to ask performance of it according to its terms without interference by the commission.
The rates were reasonable when the contract was made. The question of the validity of the contract as to that rates being reasonable is disposed of in the Lenawee Gas Case where it is said, quoting from the syllabus:
“If the validity of a franchise contract as to rates depends on the agreed rates being reasonable, it follows from the fact that there was a contract that the question of whether it was reasonable must relate to the time the contract was entered into.”
It is said that the contract is ultra vires because (a) the making of it was attempted at a time when the power of the village had been exhausted by the making of the contract then in force, the contract of 1904, and, (b) it was for a longer period than 10 years, namely, 10 years, and nearly 6 months.
On the first point counsel cite Village of Morrice v. Sutton, 139 Mich. 643, and cases from other jurisdictions, none of which is controlling. The contract of March, 1913, in terms abrogates the former contract,, provides that it shall become null and void on the date the later contract was to take effect, September 1, 1913. The record does, not disclose clearly the causes and considerations for the making of the new contract and the abrogation of the old, but we think the consideration for such abrogation is the new contract. No complaint is made of the terminating of the old contract, no wrong or impropriety in regard thereto is claimed. The claim is of the making of the new contract while the old one was still in force. The power to so contract, though exhausted by the making of the first contract, was restored by the agreement terminating such contract on the day the later contract was to take effect.
Of the second point the case of City of Saginaw v. Consumers’ Power Co., 213 Mich. 460, is decisive. In that case a period of seven months intervened between the making of the contract and the beginning of its term. This period was held to be a reasonable time for preparation and for installation of equipment for performance of the contract. In the case at bar the contract is set out at length in the record. We think it is to be inferred that for a prompt and full performance thereof time for preparation was necessary. We think the time allowed, 5 months and 24 days, not unreasonable. Indeed it may be said that in most if. not all cases full performance of these contracts for a term equal to) the statutory period of 10 years cannot be had unless there be allowed reasonable time for preparation. The time should be allowed in good faith and for the purpose stated and whether reasonable or not must depend upon the facts of a given case. The statutory limitation does not apply to that portion of the contract relating to light and power for the inhabitants of the village. As to them a contract may be for a reasonable time, and 10 years, 5 months and 24 days is not unreasonable. See City of Saginaw v. Consumers’ Power Co., supra.
Other questions are suggested briefly by counsel but we do not think it necessary or profitable to discuss them.
The decree is affirmed with' costs to plaintiff.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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Bird, J.
The case of Neson Rosen against the plaintiff herein was tried in the Wayne circuit court and a judgment rendered therein for the said Rosen on the 19th day of April, 1919. Three days later, on April 22d, an order was entered giving plaintiff herein 60 days in which to settle a bill of exceptions. The time allowed by this order expired on June 25, 1919. No further extension of time was granted or requested until October 8, 1920, on which date a motion was filed asking for further time. This motion was heard and denied on October 23, 1920. This is the order which the plaintiff now asks this court to set aside.
The reasons which the plaintiff gives in support of his motion are the following:
First: Because settlement of bill of exceptions properly follows adjudication of motion for a new trial, and that final adjudication upon defendant’s motion for a new trial was not made until September 11, 1920.
Second: Said final adjudication upon said motion was postponed solely on account of the inability of the court to hear the same, and hot upon account of any delay upon the part of defendant.
It is quite true that settlement of bills of exceptions usually follows the adjudication of motions for new trial, but this fact furnishes scant excuse for failure to obtain extensions of time in which to settle bills, of exceptions. The fact that a motion for a new trial is pending does not suspend the running of the time which has been granted to settle a bill of exceptions. The practice on these questions is regulated by different rules of court. Rule No. 48 provides the method to be followed in making applications for new trials, whereas Rule No. 66 and section 12634, 3 Comp. Laws 1915, provide the practice for the settlement of bills of exceptions. The only connection there is between motions for new trial and settlement of bills of exceptions is made by the statute when the new trial is made and denied within the first 20 days after judgment (section 12634). We are not impressed that there is any virtue in this ground.
The record shows that plaintiff’s attorney ordered a transcript of the testimony from the stenographer on May 2d and the same was delivered to him on August 11, 1919. Some delays occurred by reason of the illness and absence of the nonresident judge who heard the case in Wayne county. Other delays were caused by the summer vacation of plaintiff’s counsel and by misunderstandings as to when his motion would be heard. We are not impressed that the showing is such that it furnishes a valid excuse for plaintiff’s failure to apply for further time after his right expired on June 25, 1919. Plaintiff could, at least, have made a motion to extend the time to settle his bill even though it were difficult to get it to a hearing. This he did not do for 15 months. Under the holding in Boyne City Hardware Co. v. Charlevoix Circuit Judge, 197 Mich. 374, we do not think the trial court had the power to make the extension asked for, under the showing, after so great a lapse of time. But whether he did or not, the questions which are before us were all before the trial court upon plaintiff’s motion, and it was the conclusion of the trial court that the motion should be denied. We find nothing in the record which would justify us in concluding that the trial court had abused its discretion in making the order.
The order will be affirmed; with costs to the defendant.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Moore, J.
This is an injunction bill. It is alleged in the bill of complaint and admitted in the answer that the city of Lansing has purchased a farm in Delta township for the purpose of establishing thereon a piggery, where hogs will be kept and fed on the garbage collected from the city of Lansing. The plaintiffs live in the neighborhood of said farm. It is alleged in the bill of complaint that said garbage and its disposal will create a nuisance, endangering the lives and health of the plaintiffs, and destroy the enjoyment of their homes and greatly depreciate the value of their property. The defendants deny that the conditions which will exist under their method of dis posing of the garbage will create a nuisance or cause discomfort to the plaintiffs. An injunction was issued on an ex parte application.' A motion was made to dissolve the injunction. This motion was overruled. This is a proceeding to review that action.
The pleadings and the affidavits accompanying the same show a pressing necessity to have the question of whether the injunction was improvidently issued speedily determined. A similar question in the legal principles involved to the one here was presented in Wolfschlager v. Applebaum, 213 Mich. 180. We think that case is controlling of the instant case. We shall not quote therefrom but content ourselves with referring to the case.
The bill of complaint was prematurely filed and the injunction is dissolved without prejudice, with costs to the city.
Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Steere, C. J.
Plaintiff instituted summary pro ceedings before a circuit court commissioner of Genesee county to recover possession of certain leasehold premises known as No. 527 South Saginaw street in the city of Flint. The case was re-tried on appeal to the circuit court of Genesee county before the court without a jury on stipulated facts, and judgment rendered for defendant. So far as material to the question raised, it was shown that prior to January 6, 1920, plaintiff was owner by assignment from the lessor of a written lease given by Sarah E. Burr of Flint to Charles E. Ische and Will Ische dated January 10, 1911, running for five years with the privilege of renewal for an additional five years from January 10, 1916. They were partners when the lease was made and thereafter in possession of the leased premises operating a shoe store under the firm name of Ische Brothers. The lease runs to “Ische Brothers, Will Ci Ische and Charles E. Ische, copartners.” The property leased is described as “The first floor and north half of the basement of store building at number 527 S. Saginaw street, second ward of Flint,” the same “to be occupied for a general shoe store” at a rental of “one thousand dollars each year, payable monthly in advance,” and in case the provided privilege of re-lease for five years more is exercised the rental is specified as “the sum of six thousand dollars, payable twelve hundred dollars each year, payable monthly in advance.” The lessees are required to keep the premises in repair, etc. 'The instrument also provides :
“Said parties of the second part further covenant that they will not assign nor transfer this lease or sublet said premises, or any part thereof, without the written assent of said party of the first part.” * * *
It further contains the customary provision that in case rent is not paid when due—
“Or if default shall be made in any of the covenants herein contained, then it shall be lawful for said party of the first part, her certain attorney, heirs, representatives and assigns to re-enter into, re-possess the said premises, and the said parties of the second part, and each and every other occupant to remove and put out.”
On January 6, 1920, the Ische' Brothers sold to defendant Elwyn Pond a two-thirds interest in their stock of goods, for which bill of sale was given, and took him into partnership with them. By the papers which they executed the shoe business was to be continued under the firm name of Ische Brothers at 527 South Saginaw street for the term of one year and four, days, Pond to act as manager, for which he was to draw $25 per week, and the Ische Brothers were to “act only in an advisory capacity” in the management of the business. No mention was made of the lease in the papers which they executed between them. On learning of the agreement between Ische Brothers and defendant Pond plaintiff gave notice of forfeiture of the lease “for breach of the covenant against subletting and assigning,” and demanded possession of the premises from the three partners. On their failing to surrender possession the summary proceedings involved here were instituted.
The trial court filed an opinion holding that while inferable Pond “was given an interest in the lease,” he was not shown to be an assignee of the lease, and under the facts stipulated his joint occupation of the premises with the Ische Brothers as a partner for conduct of the business carried on there did not render him guilty of unlawful possession of the premises. Plaintiff’s right to review was preserved by requests, objections and exceptions timely made.
The question involved and argued by counsel is whether taking Pond into partnership, selling him an interest in the stock with a proportionate share in the profits and committing to him management of the business then being conducted on the leased premises with the other members of the firm yet acting in an advisory capacity, violated the covenant in the lease against assigning or transferring the same or subletting the premises, or any part thereof, without written consent of the lessor.
Appellant’s contention is squarely planted in the brief of his counsel upon the proposition that “taking in a partner to a lease violates the covenant against assignment,” which it is asserted all authority holds, that whether it violates a covenant against subletting is not involved and cases cited to that point do not apply. While counsel for defendant insists the adjudicated cases hold that under a similar covenant to that found in the lease under consideration taking a partner into a business, or trading firm, as done here, does not violate a covenant against either assigning or subletting.
In approaching the subject we are confronted with the general rule that forfeitures are not favored in law, especially when they divest estates, and restrictions in leases against assignments or subleases, as also other conditions in contracts providing for disabilities and forfeitures, are to- be given a strict construction against those-for whose benefit they are introduced when of questionable import or in any wise open to construction. Upon that point, and for illustration covering the question before us, it is said in White v. Huber Drug Co., 190 Mich. 212:
“It has been said, however, that covenants against assignment or underletting are not favorably regarded by the courts and are liberally construed in favor of the lessees. But this means only that the scope of the term ‘assignment’ will not be enlarged by the courts, and that the covenant. will not be considered as violated by any technical transfer that is not fairly and substantially an assignment j as where a tenant without license from his landlord takes a third party into partnership and lets such party into joint possession with him.”
Counsel for plaintiff urges that this recognition of the rule defendant contends for was irrelevant to the issue in that case and mere dictum, necessarily no stronger than Roosevelt v. Hopkins, 38 N. Y. 81, cited as authority for the doctrine, which it is argued does not go that far but was decided on the ground that the prohibition against assignment was not intended to interdict transactions between partners.
In the White Case the charged violation of a restriction in the lease under consideration was an assignment by one corporation to another, and it may be conceded what was said as to partners was only illustrative. It is, however, the interpretation of the Roosevelt Case sustained by recognized authority as follows:
“Where the lessee is a firm a mere change in partners which compose it, or the taking in of a new partner is not a breach of a condition against an assignment. Nor is such conduct on the part of the lessee a subletting.” 2 Underhill on Landlord and Tenant, p. 1050.
“The covenant (not to assign) is not broken by associating others with the lessee in the enjoyment of the term; as by changing the membership of a firm.” 1 McAdam on Landlord and Tenant (3d. Ed.), §141.
“A condition against subletting or assignment is not broken where the tenant takes another into partnership with him and lets such person into joint possession of the premises. Nor is such a condition in a lease to a partnership broken by a change in the firm by the admission or withdrawal of partners, or by a dissolution of the firm and a transfer of the possession to one of the partners. But the organization of a corporation by the partnership and a transfer of the lease to such corporation is a breach.” 24 Cyc. p. 969.
We think it may fairly be said from an examination of the decisions touching this question in other juris dictions, both English and American, that the authorities are not entirely harmonious upon the subject and cases are to be found on either side of the question. Conceding what was said in the White Case to be dictum,, it may be noted in passing that so far as this court has touched the question it favored the view that taking in a partner does not in itself violate a condition against assigning a lease. In 1 Tiffany on Landlord and Tenant, p. 925, the subject is discussed with citation of authorities and it is said in part:
“Upon the question whether a stipulation against an assignment or sublease of the premises precludes an assignment or sublease of part of the premises, or an assignment of an undivided interest therein, the cases, though few in number, are not in harmony.”
It is unquestioned that the assigning of a lessee’s entire interest in a lease to a partner or to others will work a forfeiture. In such cases the lessee is no longer interested in the premises and seeks to put in possession a new tenant to attorn to the landlord. Here the old members of the firm did not by any written instrument of demise assign the lease or withdraw but remained in the same business conducted in the same firm name as before, only with a new partner in joint occupation, for conduct of the business. No direct demise or even mention was made of the lease in that connection and only by implication from the fact that defendant had purchased an interest in the business and become a partner in the firm can an assignment of any interest in the lease be claimed. Defendant was undoubtedly interested in the lease so far as it related to being maintained for the business conducted on the premises leased, but it does not follow that he became an assignee of an interest in the lease in violation of the wording of the prohibition against assigning. The provision of the prohibiting clause claimed to have been violated is that the Ische Brothers “will not assign nor transfer this lease.” By the disjunctive “or” they are further restricted from subletting- “said premises, or any part thereof,” which is not claimed to have been violated and which is in its essentials a distinct independent restriction, which plaintiff admits is not involved here. By the strict construction applied in case of restrictions against demise, a prohibition against assigning a lease does not prohibit assigning any interest therein, which is all that is claimed here. In Roosevelt v. Hopkins, supra, the lessees were partners under the firm name of Hopkins & Crow. Their lease provided they should not “demise, sell, underlet or assign over said premises to any person or persons whatsoever.” Crow retired from the firm and the business was afterwards conducted by a new firm styled Hopkins & Bros, which sublet a part of the premises. The court there said:
“They neither demised, sold, underlet nor assigned the entire property embraced in the lease. They were not prohibited from subletting portions of the premises; and the exercise of this right, therefore, gave no cause of action to plaintiff.”
“An assignment of a lease is the transfer of a tenant’s whole estate therein to some third person: * * * If the grantor conveys a shorter term or less estate than he himself had in the premises, or if a lessee for life grants a term of years, provided, the life should continue so long, this is not an assignment of the freehold, but only a grant of a term; and will, in neither case, amount to more than an under-lease.” 2 Taylor on Landlord and Tenant, § 426.
“By the assignment the tenant parts with his entire interest and a new tenant takes his place with whom the landlord must deal as with his predecessor.” 2 Underhill on Landlord and Tenant, p. 1052.
No such situation presented itself here. If Ische Brothers parted with title to any interest in the lease, which is but an inference, they did not part with their entire interest in the leasehold estate which they held in the premises, nor in the business conducted there. They yet were entitled to possession as tenants and bound to attorn to the landlord as before. No difference in the authorized kind of business, manner of conducting it or care of the premises is shown or claimed. The stipulated facts do not sustain plaintiff’s technical claim of forfeiture for violating the covenant of the lease forbidding its assignment when measured by the rule of strict construction applicable to breaches of conditions working forfeitures of leasehold estates.
The judgment is affirmed.
Moore, Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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] |
Sawyer, J.
The sole issue in this case is whether petitioner is eligible for the small business tax credit provided by § 36 of the Single Business Tax Act, MCL 208.1 et seq.; MSA 7.558(1) et seq. Petitioner claimed the credit for tax years 1978 through 1981, inclusive, and respondent disallowed the credit. Petitioner sought review in the Michigan Tax Tribunal, which ruled in favor of respondent. Petitioner now appeals to this Court and we reverse.
The underlying facts are essentially undisputed, with the parties’ differences being over the appropriate interpretation of the sbta. Petitioner is a wholly owned subsidiary of Deltronic Corporation. Petitioner conducts its operations solely within the State of Michigan, while Deltronic conducts its operations entirely outside the State of Michigan. There is no dispute that petitioner, standing alone, qualifies for the small business tax credit. The dispute is over the question of to what extent the business affairs of the parent corporation, Deltronic, must be combined with petitioner’s business activity to determine petitioner’s eligibility for the credit. It is conceded that, if Deltronic’s entire commercial activity, wherever it occurs, must be consolidated with petitioner’s activities, then petitioner is ineligible for the credit.
Section 31C1) of the sbta imposes a tax of 2.35 percent upon the adjusted tax base for business activity in Michigan. However, § 36(3) provides a credit for small businesses which meet the requirements of § 36(2). Section 36(2) provides in pertinent part as follows:
The credit provided in this section shall be taken before any other credit under this act, and is available to any person whose gross receipts do not exceed $3,000,000.00 for tax years commencing before January 1, 1984 . . ., and whose adjusted business income does not exceed $300,000.00 for tax years commencing before January 1, 1984, . . . subject to the following:
(b) A corporation other than a subchapter S corporation shall be disqualified if either of the following occur for the respective tax year:
(i) Compensation and director’s fees of a shareholder or officer exceed $60,000.00 for tax years commencing before January 1, 1984, . . .
(ii) The sum of the following amounts exceeds $60,000.00 for tax years commencing before January 1, 1984, . . . :_
(A) Compensation and director’s fees of a shareholder.
(B) The sum of business income and the adjustments provided in section 9(4)(a) and (b) times the percentage of outstanding stock owned by that shareholder.
The credit is further restricted by § 36(4), which provides as follows:
(4) An affiliated group as defined in this act and a controlled group of corporations or an entity under common control as defined by the internal revenue code shall not be allowed to take the credit allowed by this section unless the business activities of the entities are consolidated.
The definition of a controlled group of corporations under the Internal Revenue Code is contained in 26 USC 1563. It is not in dispute that petitioner is a part of a group controlled by Deltronic and, therefore, comes within the provisions of § 36(4). Rather, the question is, when the business activities of Deltronic are consolidated with the business activities of Alameda does the result put the group over the limitations of § 36(2)? We answer this question in the negative.
Section 3(2) of sbta defines "business activity” as follows:
"Business activity” means a transfer of legal or equitable title to or rental of property, whether real, personal, or mixed, tangible or intangible, or the performance of services, or a combination thereof, made or engaged in, or caused to be made or engaged in, within this state, whether in intrastate, interstate, or foreign commerce, with the object of gain, benefit, or advantage, whether direct or indirect, to the taxpayer or to others, but shall not include the services rendered by an employee to his employer, services as a director of a corporation, or a casual transaction. Although an activity of a taxpayer may be incidental to another or other of his business activities, each activity shall be considered to be business engaged in within the meaning of this act. [Emphasis added.]
Petitioner interprets this section as meaning that "business activity” is activity occurring within the State of Michigan. We agree. Indeed, we can think of no meaning to ascribe to the words "within this state” as used in § 3(2) other than to mean that "business activity” includes only those activities occurring within the State of Michigan. To accept a definition of "business activity” to include activities occurring outside the State of Michigan is to render the clause "within this state” meaningless. To do so would violate the cardinal rule of statutory construction that every phrase, clause and word in a statute must be given effect. In re Harris Estate, 151 Mich App 780, 785-786; 391 NW2d 487 (1986).
Therefore, since "business activity” means activity within the state, § 36(4) requires the consolidation of the Michigan business activities of Alameda and Deltronic to determine Alameda’s eligibility for the credit. However, it is agreed that Deltronic conducts no business within Michigan. Therefore, Deltronic has no business activity within the meaning of §§ 3(2) and 36(4). Accordingly, the business activity of the Deltronic-Alameda group is the same as the business activity of Alameda alone. And, as stated above, Alameda alone qualifies for the credit; therefore, it still qualifies for the credit even after the consolidation of the business activities of Alameda and Deltronic.
Moreover, we must express our puzzlement over the Tax Tribunal’s erroneous decision and respondent’s position in this appeal in light of the stipulations entered into by the parties while they were before the Tax Tribunal. The parties stipulated, inter alia, as follows:
6. That Deltronic Corporation is not required to file a Michigan Single Business Tax return since it does not have a business activity as defined in the Michigan Single Business Tax Act.
We are amazed that respondent could admit that Deltronic has no business activity within the meaning of the sbta, yet continue to argue that it has a business activity to consolidate with Alameda’s business activity under § 36(4). In effect, respondent is requesting us to adopt a meaning of "business activity” for § 36(4) which differs from the definition of the rest of the act. However, § 2(1) of the sbta provides the definitions set forth in the sbta shall be uniform for the entire act. Thus, if, as respondent stipulated below, Deltronic has no business activity within the meaning of the sbta, then it follows that it has no business activity within the meaning of § 36(4) of the sbta.
Because of our resolution of this issue in favor of petitioner, we need not address petitioner’s alternate arguments.
The decision of the Michigan Tax Tribunal is reversed. The matter is remanded to the tribunal for further proceedings consistent with this opinion. Jurisdiction is not retained. Costs to petitioner.
MCL 208.31(1); MSA 7.558(31)(1).
MCL 208.36(3); MSA 7.558(36X3).
MCL 208.36(2); MSA 7.558(36)(2).
MCL 208.36(4); MSA 7.558(36)(4).
MCL 208.3(2); MSA 7.558(3)(2).
MCL 208.2(1); MSA 7.558(2)(1). | [
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Per Curiam.
Plaintiffs appeal as of right from a Wayne Circuit Court order which granted defendants’ motions for summary disposition of plaintiffs’ negligence action pursuant to MCR 2.116(C)(8) and (10). Plaintiffs Albert and Rosa Rodriguez are guardians of the minor son of the principal plaintiff, Ynderso Rodriguez, and are joined in this suit based on the child’s loss of companionship of his father. For convenience, use of the word plaintiff or Rodriguez in this opinion will refer solely to the principal plaintiff, Ynderso Rodriguez.
The basic facts necessary for the resolution of this appeal are essentially undisputed. On April 6, 1982, the Order of Alhambra, Malaga Caravan No. 188, entered into a short-term lease agreement with the Detroit Sportsmen’s Congress to use Warsaw Park for a fund-raising picnic to be held on July 18, 1982. Warsaw Park is owned by Detroit Sportsmen’s Congress and is located on the Clinton River in Shelby Township. The Clinton River is not owned or controlled by the Detroit Sportsmen’s Congress, and swimming in the river is prohibited. The land across the river is owned by the State of Michigan, Department of Natural Resources.
Plaintiff, along with several friends, attended the picnic sponsored by the Order of Alhambra at Warsaw Park and paid an admission fee of approximately three dollars. Rodriguez and his friends set up a picnic table about fifty feet from the river. At about 1:30 p.m., Rodriguez went swimming in the Clinton River. There were about ten to twenty other people also swimming in the river.
Later that day, Rodriguez again went into the water. He entered the river from an access point in Warsaw Park, swam across the river, approximately thirty feet, and climbed onto the opposite bank onto the real property owned by the dnr. Rodriguez got in line with approximately six other people waiting to climb into a tree on the dnr side of the river that angled out over the water for purposes of diving from the tree into the water. Rodriguez proceeded to jump from the tree into the water about five times. Other people were also using the tree as a diving board into the river. Plaintiff them climbed the tree for a sixth time and stood on a branch preparing to jump. However, the branch cracked and gave way, causing him to fall off-balance into shallow water. As a result of the fall, Rodriguez hit his head on the bottom and sustained permanent paralysis.
At the time of the accident, plaintiff was twenty-nine years old and weighed 185 to 190 pounds. He was a strong swimmer and had previously been the captain of his high school swim team. Plaintiff also had some diving experience. Rodriguez said that on the day of the accident, he did not see any signs warning him that swimming was not allowed, nor did anyone tell him that swimming in the Clinton River was dangerous. Further, the record indicates that plaintiff claimed that Detroit Sportsmen’s Congress was aware that, prior to the accident, the "no swimming” signs it had posted were torn down, and that people using the park often swam and waded in the Clinton River. No guards, walls or barriers prevented this practice. It was also asserted that the Sportsmen’s Congress knew that people often used the tree on the opposite bank as a diving board into the river.
Following his fall and injury, Rodriguez instituted the present action, alleging that defendants were negligent in failing to provide a safe place for recreation or in failing to provide appropriate warnings and signs prohibiting swimming in the river. Defendant Sportsmen’s Congress promptly moved for summary disposition, asserting that plaintiff had failed to state a claim because they (Sportsmen’s Congress) owed no duty to plaintiff to warn of dangers on property under the ownership and control of another. Defendant Sportsmen’s Congress also argued that, since plaintiff’s injury was caused by the shattering of a tree limb not located on defendant’s property, his injuries were not foreseeable and any acts or omissions of defendant were not the proximate cause of plaintiff’s injuries. The other defendants subsequently joined in the Sportsmen’s Congress’ motion asserting similar basis for dismissal.
The trial court granted defendants’ motions for summary disposition, reasoning that defendants had no duty to plaintiff with respect to land situated across the river from the land defendants owned or controlled. The court also reasoned that summary disposition was appropriate because it was not reasonably foreseeable that plaintiff would be injured as a result of falling off a broken tree limb situated across the river from defendant Sportsmen’s Congress’ premises and on the land of another.
On appeal, plaintiff argues that the trial court clearly erred when it decided that defendants’ duty to protect plaintiff from the dangers inherent in swimming in the river ceased at the time plaintiff crossed the river and reentered on the opposite shore on the real property of another. According to plaintiff, defendants had a duty to restrict, prohibit or warn plaintiff, a business invitee, of the dangers associated with swimming and diving in the river and that duty existed regardless of the location of the accident. We do not find plaintiff’s reasoning persuasive or supported by the cases.
The determination of whether a legal duty exists is a question of whether the relationship between the actor and the plaintiff gives rise to any legal obligation on the actors part to act for the benefit of the subsequently injured person. Further, a legal duty is essentially an obligation recognized by law which requires an actor to conform to a certain standard of conduct for the protection of others against unreasonable risk. Thus, the determination of whether a duty should be recognized in any individual case is based on a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence and the relationship between the parties. The element of duty in a negligence action is a question of law for the court to decide.
It is well settled in Michigan that the owner or possessor of land is required to take reasonable precautions to protect an invitee from dangers that are foreseeable. However, the law does not ordinarily impose a duty of care upon the occupier of land beyond the area over which he has possession or control. Where the occupant of one parcel of land has been held responsible for the condition of an adjoining parcel to which another has title or possession, such responsibility is predicated on the fact that he exercised control over the land beyond his boundaries.
In Berman v LaRose, this Court formulated a test for determining whether a landowner owes a duty to invitees for injuries which occur on abutting property:
In order to establish the liability of defendant for plaintiffs injuries, incurred on the abutting publicly owned land, we find that it was necessary for plaintiff, by drawing an analogy to a public way or sidewalk, to prove at a minimum that in some manner defendant (1) increased the hazards in the parking area which existed at the time of the injury, or (2) created new hazards on the land strip, or (3) had a servitude for his private benefit in the parking area, by a physical intrusion of his premises or otherwise, the enjoyment of which affected the area’s safety and thus imposed a duty on defendant to maintain the area in a reasonably safe condition.
Further, in Swartz v Huffmaster Alarms Systems, Inc, this Court held that a restaurant was not liable for the injuries plaintiff sustained when he was hit by a car while crossing the street after leaving the restaurant. The Court indicated that when plaintiff left the restaurant and was no longer on property owned or controlled by defendant, any duty owed had ended. The Swartz Court also noted the general rule that the law normally does not impose a duty on business establishments beyond their premises.
In the within case, however, plaintiff argues that defendants should have taken measures to prevent their invitees from entering the water in the first place. Plaintiff reasons that, if the park had not provided ready access to the river, then he would not have been swimming and diving and, therefore, his injuries could have been avoided. Thus, regardless of how and where the injury occurred, plaintiff asserts that defendants are liable because the use of the river for swimming was foreseeable in the absence of warnings or barriers.
We believe, however, that imposing a duty on defendants to protect invitees from the hazards of the river and the adjacent river bank, under the facts of this case, would extend the logic of premises liability beyond acceptable limits. Defendants did not in any manner increase the hazards which might be encountered by one swimming or diving in the river. Also, no action or inaction on the part of defendants created a hazard which did not already exist. While the record does indicate that it may have been foreseeable that, contrary to instructions, guests at the picnic might enter the river to swim, this fact does not alter the fact that the diving accident in this case occurred off defendants’ premises and on dnr property, which they did now own or control. Further, the record indicates that, when "no swimming” signs were posted, they were ignored and removed.
Certainly, the law does not impose upon defendants a duty to remedy hazards found in the river or on the adjacent bank. We also believe that the absence of warning signs did not contribute to or increase the risk of harm that plaintiff, an experienced swimmer and diver, encountered when he voluntarily chose to swim and dive in the river. Thus, the injuries sustained by plaintiff were not the fault of defendants or the result of a condition which defendants created. Since plaintiff had left the property owned and controlled by defendants when the accident occurred, defendants’ duty to warn plaintiff had ended and should not be extended so as to impose liability on defendants in this case.
Therefore, we hold that, when plaintiff swam the river and entered the real property of another, defendants no longer owed any duty to plaintiff arising out of their duty to keep the premises reasonably safe. Accordingly, we believe the trial court was correct in granting summary disposition in favor of defendants. Since we find the duty issue dispositive, we need not consider the alternative grounds asserted by defendants in support of the court’s ruling.
Affirmed.
Bronson, J., did not participate.
Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977).
Swartz v Huffmaster Alarms Systems, Inc, 145 Mich App 431, 434; 377 NW2d 393 (1985).
Duvall v Goldin, 139 Mich App 342, 347-349; 362 NW2d 275 (1984), lv den 422 Mich 976 (1985).
Moning, supra, p 438.
Kroll v Katz, 374 Mich 364, 373; 132 NW2d 27 (1965).
See McKnight v Carter, 144 Mich App 623, 634; 376 NW2d 170 (1985), lv den 424 Mich 859 (1985); Swartz, supra, p 435.
See Langen v Rushton, 138 Mich App 672; 360 NW2d 270 (1984), lv den 422 Mich 967 (1985).
16 Mich App 55, 58-59; 167 NW2d 471 (1969).
Supra.
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Per Curiam.
Vincent Don Keifer was born on October 11, 1981. On July 14, 1982, Wilbert Dick, the child’s biological paternal grandfather, called Protective Services and reported that Vincent had been abandoned in his care. Vincent was picked up and taken to the Department of Social Services in whose care he has remained since that date. On November 27, 1985, the Wayne County Probate Court ordered that the parental rights of Vincent’s mother, his legal father and his biological father be terminated. Thereafter, the probate court denied an untimely request for rehearing or reconsideration by Vincent’s biological father, Phillip L. Dick, also known as Phillip Dumond (hereafter respondent). On August 5, 1986, we granted respondent’s application for delayed appeal.
On appeal, respondent raises three issues, including a claim that he was denied his right to counsel during the termination proceedings. We find this issue to be dispositive and reverse.
When Vincent was initially placed in protective custody, respondent was incarcerated in a Michigan prison. However, by January 12, 1983, the date of the first hearing on the dss’s petition for temporary custody, respondent had been released. Respondent attended the January 12, 1983, hearing without counsel and his appearance was noted on the record. The referee did not advise respondent of his right to an attorney and none was appointed. Respondent was not advised of his right to testify, his right to call witnesses or his right to cross-examine the witnesses presented by the dss, and did not do so. Because certain witnesses were unavailable at that time, the court ordered that the hearing be continued at a later date. Respondent did not attend any proceedings after the January 12, 1983, hearing.
On October 17, 1983, the dss petitioned the probate court to take permanent custody of Vincent and to terminate the parental rights of Vincent’s mother, legal father and respondent.
A hearing on the petition was not conducted until October 10, 1984, almost a full year later. Respondent received notice of that hearing and on August 9, 1984, wrote a letter to the Wayne County Probate Court informing the court that he had been arrested on April 6, 1984, in Vancouver, Washington, on felony charges of "Assault n and Burglary ii” and was incarcerated awaiting trial. Respondent asserted that he was "fighting” the charges, but that, if they were not dropped, he would be unable to attend the October 10, 1984, hearing. Respondent also inquired whether it was possible to postpone the date of the hearing.
The October 10, 1984, hearing proceeded as scheduled. At the conclusion, the referee indicated that there was a letter in the file from respondent and requested David Allasio, the foster care worker in charge of Vincent’s case, to contact respondent to see if respondent could offer a plan for Vincent’s care.
On December 11, 1984, a second hearing on the petition for permanent custody was conducted. At that hearing, David Allasio testified that he had been unable to contact respondent but had spoken with a James Sowder, the attorney who was representing respondent in the criminal charges being brought against him in Washington. Apparently, respondent had been convicted of the charges by this time. Sowder informed Allasio that respondent had mentioned Vincent to him a couple of times and that respondent wanted custody. Sowder also told Allasio that respondent had received a maximum sentence of five years and would be in prison until at least October of 1985.
At the conclusion of the December 11, 1984, hearing, a third hearing on the petition for permanent custody was scheduled for February 6, 1985. However, it appears that that hearing was apparently either never conducted or that no evidence was presented on that date.
Respondent was not sent notice of the December 11, 1984, hearing. Apparently, the first direct response by either the court or the dss to respondent’s August 9, 1984, letter was a letter written by Allasio on December 12, 1984, the day after the second hearing on the permanent custody petition. Thereafter, respondent and Allasio corresponded frequently.
On February 6, 1985, the court appointed an attorney to represent respondent. Thereafter, respondent’s attorney requested and was granted at least one continuance.
On November 25, 1985, a third hearing on the petition for permanent custody was conducted. At that hearing, respondent’s attorney informed the court that respondent expected to be paroled in the very near future and requested another continuance until respondent could appear. The referee denied the request and entertained closing arguments, after which he concluded that there were sufficient grounds to terminate respondent’s parental rights, as well as the rights of Vincent’s mother and legal father.
It is clear from the juvenile court rules that it is a mandatory requirement that the probate court advise parents at the first adjudicative hearing of their right to an attorney and that an attorney may be appointed for them if they are indigent. JCR 1969, 6.1(A), now MCR 5.906(A); JCR 1969, 8.2(C), now MCR 5.908(B)(3); In re Perry, 148 Mich App 601, 611; 385 NW2d 287 (1986), lv den 426 Mich 867 (1986). Since respondent was not advised of his right to counsel at the first adjudicative hearing, which was held on January 12, 1983, and which he attended, clear legal error occurred.
A second ground for reversal also exists. On its own motion, the probate court must appoint counsel to represent indigent parents at hearings which may involve termination of their parental rights unless such right is expressly waived. JCR 1969, 6.3(A)(2)(b), now MCR 5.906(C)(2)(b). There is no evidence in the record that respondent ever waived his right to counsel. On October 17, 1983, the dss petitioned the court to take permanent custody of Vincent. After that date, two evidentiary hearings were conducted pursuant to that petition. There is no question that these hearings involved the termination of respondent’s parental rights. Since no attorney was appointed to represent respondent during these hearings, it is clear that respondent was deprived of his right to counsel as afforded by JCR 1969, 6.3(A)(2)(b). While respondent was eventually appointed an attorney, the appointment came too late. As it turned out, respondent was unrepresented at the only hearings at which evidence was presented.
On its facts, the instant case is readily distinguishable from Perry, supra. In Perry, the respon dents were advised of their right to counsel at the outset of the adjudicative phase and were represented by court-appointed counsel throughout the dispositional phase.
Without citation to authority, the dss argues that respondent’s right to counsel is not absolute where the putative father has not taken any steps to establish paternity. This argument deserves little comment. A party may not leave it to this Court to search for authority to sustain or reject its position. Wojciechowski v General Motors Corp, 151 Mich App 399, 405; 390 NW2d 727 (1986). Moreover, the issue was not raised below. In fact, the dss’s petition for permanent custody affirmatively asserted that respondent was Vincent’s biological father. Moreover, there is no indication that the term "parent” as used in JCR 1969, 6 and 8 was not intended to apply to biological parents.
In light of our disposition, we find it inappropriate to address the issues of whether sufficient evidence was introduced to support the order terminating respondent’s rights or whether adequate factual findings were placed on the record.
The order of the probate court insofar as it applies to respondent is reversed. The case is remanded to the probate court so that a new evidentiary hearing may be conducted, at which respondent is to be represented by court-appointed counsel._
A letter in the lower case file written by an agent of the dss stated that respondent should be assured that the dss acknowledged respondent as Vincent’s biological father and that a blood test was unnecessary. It is unknown whether this information was ever transmitted to respondent. | [
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Per Curiam.
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and was sentenced to a term of from ten to thirty years in prison. Defendant appeals as of right, raising four claims of error.
Defendant first argues that the trial court erred by ruling on the admissibility of evidence of defendant’s prior convictions after defendant had testified on direct examination, and by allowing the prosecutor to choose which of defendant’s prior convictions would be used for impeachment. Just prior to defendant’s taking the stand, the prosecutor sought a ruling on the admissibility of defendant’s prior convictions. The prosecutor sought to impeach defendant with evidence of his 1974 convictions for attempted armed robbery and assault with intent to commit armed robbery, as well as his 1978 misdemeanor conviction for larceny under $100. Defense counsel objected to the use of the 1974 convictions because the defendant was a juvenile in 1974, although he had been tried as an adult. Due to both parties’ inability to cite any applicable law, the trial judge requested that the parties research the issue. In the meantime, defendant was allowed to testify on direct examination. Prior to cross-examination, the trial judge ruled that the prosecutor could use evidence of defendant’s misdemeanor larceny conviction and evidence of either the attempted armed robbery conviction or the assault with intent to commit armed robbery conviction for impeachment. Defendant now claims that this was error.
In support of his claim of error, defendant relies on People v Ash, 128 Mich App 265, 268-269; 340 NW2d 646 (1983), in which one panel of this Court stated:
Defendant was entitled to know before he took the stand whether evidence of his prior record would be used for impeachment. People v Hayes, 410 Mich 422, 426-427; 301 NW2d 828 (1981). Furthermore, it was the prosecutor’s responsibility, not defendant’s, to insist on a ruling on the issue before defendant took the stand. People v Lytal, 415 Mich 603, 609-610; 329 NW2d 738 (1982).
We note that in Ash defense counsel was unaware of the prosecutor’s intent to use evidence of the defendant’s prior conviction for impeachment until after the defendant had taken the stand. In the instant case, however, defense counsel was aware of the prosecutor’s intent to impeach defendant with evidence of his prior convictions and also knew that the trial court planned to hold its ruling on admissibility in abeyance while the parties researched the issue. Under these circumstances, we decline to follow the rule set forth in Ash.
We disagree with the blanket holding in Ash, supra, pp 268-269, that a defendant is entitled to know before taking the stand whether evidence of a prior conviction will be used for impeachment. Such a holding would add a procedural requirement not contained in MRE 609 itself. The authority cited by the Ash Court in support of this holding is People v Lytal, 415 Mich 603, 609-610; 329 NW2d 738 (1982). However, we conclude that the Ash Court’s reliance on Lytal is misplaced.
In Lytal, the trial judge reserved ruling on the prosecutor’s motion to admit evidence of a prior conviction until after the defendant testified. The trial judge decided that his ruling on the motion was dependent on the defendant’s testimony. Evidence of the defendant’s prior conviction was ultimately admitted. In reviewing the case, our Supreme Court held that the defendant was entitled to know, before he took the stand, whether evidence of his prior conviction could be used for impeachment purposes. Lytal, supra, p 609, citing People v Hayes, 410 Mich 422, 426-427; 301 NW2d 828 (1981). We note that although this language can be found in Hayes, it should be read in context with the holding in that case (where our Supreme Court held that it was an impermissible abdication of judicial discretion when the trial judge insisted that the defendant not impeach the prosecutor’s witnesses with evidence of prior convictions as a quid pro quo for the prosecutor’s promise not to impeach defendant’s witnesses with evidence of prior convictions). The Lytal Court further held that the defendant had not waived his objection to the use of evidence of the prior conviction for impeachment by not insisting on a ruling prior to the defendant’s taking the stand because the trial judge had specifically indicated he would not rule on the admissibility of such evidence until he had heard the defendant’s testimony. Lytal, supra, pp 609-610. The Court concluded that defense counsel’s insistence on a ruling would have antagonized the trial judge. The basic holding of Lytal on this issue was that the trial judge may not reserve his ruling on admissibility of evidence of prior convictions depending upon the defendant’s testimony. Nowhere in Lytal is the principle relied on in Ash espoused.
In addition, nothing in MRE 609 indicates who must initiate the trial court’s determination on the admissibility of evidence of prior convictions for impeachment. We decline to adopt the Ash Court’s placement of the burden upon the prosecutor in all instances. The defendant, here, was afforded procedural due process.
Further, after reviewing the record, we conclude that the trial court complied with the requirements of MRE 609(a)(2) by weighing the probative value of the evidence of defendant’s prior convictions with its prejudicial effect and determining that such evidence was admissible for impeachment. In addition, the trial judge did not abdicate his discretion by allowing the prosecutor to choose which of defendant’s 1974 convictions would be used for impeachment. The trial judge had already determined that evidence of the convictions was admissible, but chose to limit the number of prior convictions used to impeach. Allowing the prosecutor to choose which one of the two prior convictions to use for impeachment is not error.
Next, defendant argues that the trial court erred by allowing the examining physician to testify that her examination of the victim revealed evidence of trauma consistent with forceful penetration. We disagree. The examining physician in a criminal sexual conduct case is a proper witness as long as his or her testimony may assist the jurors in their determination of the existence of either of two crucial elements of the crime charged, (1) penetration itself and (2) penetration against the will of the victim. People v McGillen #2, 392 Mich 278, 284; 220 NW2d 689 (1974); People v Byrd, 133 Mich App 767, 779; 350 NW2d 802 (1984). The testimony presented here was proper and did not violate the rules set forth in McGillen #2.
The third issue to be considered is whether the trial court abused its discretion in allowing certain evidence to be presented by the prosecution in rebuttal. During rebuttal, the prosecutor questioned the officer in charge as to whether the victim had a criminal record. Defense counsel did not object to this line of questioning. On appeal, defendant claims that this questioning constituted improper rebuttal evidence requiring reversal. We disagree. The decision to admit evidence in rebuttal rests within the trial court’s discretion. People v Eggleston, 148 Mich App 494, 503; 384 NW2d 811 (1986). If evidence is improperly admitted during rebuttal, reversal is required only if the error was so egregious as to result in a miscarriage of justice. Eggleston, supra, citing People v Etchison, 123 Mich App 448, 451; 333 NW2d 309 (1983). Although we question the propriety of the evidence admitted here, we find that the error was not so egregious as to result in a miscarriage of justice. Therefore, reversal is not warranted.
Finally, defendant claims that he was denied a fair trial because of the prosecutor’s improper closing arguments. Once again, we note that defense counsel failed to object to any of these allegedly improper remarks. Appellate review is therefore precluded unless the prejudicial effect was so great that it could not have been cured by an appropriate instruction and failure to consider the issue would result in a miscarriage of justice. People v Federico, 146 Mich App 776, 794; 381 NW2d 819 (1985). We have reviewed the record in this case, and conclude that the prosecutor’s closing argument did not deny defendant his right to a fair trial.
Affirmed.
Bronson, P.J., did not participate. | [
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R. L. Tahvonen, J.
Defendant Joanne Lowery appeals by leave granted from a circuit court order reversing a district court order and remanding the case for entry of judgment in favor of plaintiff Citizens Insurance Company of America in the amount of $2,500 pursuant to the parental liability statute, MCL 600.2913; MSA 27A.2913. We affirm.
The parties have stipulated to the facts. On May 21, 1982, Joseph Lowery, the fifteen-year-old son of defendant Joanne Lowery, stole a car owned by Frances S. Kinkle. The vehicle was insured by Citizens. The trial court found that Joseph Lowery operated the vehicle in a manner which was "reckless to the point of [being] wilful and wanton misconduct,” resulting in damage to the Kinkle car, a garage and a legally parked car.
Citizens paid the collision loss on the Kinkle vehicle and also paid no-fault property protection benefits to the owners of the damaged garage and parked car. Citizens, as subrogee of Frances Kinkle, brought an action in district court against Mrs. Lowery under the parental liability statute, MCL 600.2913; MSA 27A.2913. Joanne Lowery filed a third-party action against her homeowner’s carrier, Pioneer State Mutual Insurance Company, alleging failure to defend. The district court found against Citizens on its claim under the parental liability statute and for Mrs. Lowery on her third- party claim against Pioneer for failure to defend. Citizens alone appealed. The circuit court reversed and remanded for entry of judgment in the amount of $2,500 for Citizens.
Mrs. Lowery appeals by leave granted, arguing in this Court that Citizens is not entitled to recover under the parental liability statute for three reasons. First, Citizens is not the real party in interest because it purports to sue as a subrogee of its insured (who had no duty to pay) and not as subrogee of the owners of the garage and the parked car to whom payment was in fact made. Second, Mrs. Lowery’s liability is abolished by the no-fault act, MCL 500.3135; MSA 24.13135, because the damage was caused by the operation of a motor vehicle. Third, Citizens’ claim for reimbursement is barred by the no-fault act itself, MCL 500.3116; MSA 24.13116.
Mrs. Lowery raises the claim that Citizens is not the real party in interest in this lawsuit for the first time in this Court although the circuit court raised the issue sua sponte in its written opinion reversing the district court’s order. While a party’s failure to raise an issue below normally precludes appellate review, this rule is not inflexible. Because the issue is a question of law concerning which the necessary facts have been presented, the issue merits consideration. See Ledbetter v Brown City Savings Bank, 141 Mich App 692, 702; 368 NW2d 257 (1985).
As to the damage to the Kinkle automobile, Citizens is subrogee to Frances Kinkle pursuant to the subrogation clause in the insurance policy. See Michigan Medical Service v Sharpe, 339 Mich 574; 64 NW2d 713 (1954).
Citizens’ claim for reimbursement of property protection benefits paid for the damage to the garage and parked automobile presents a different problem. As Kinkle’s no-fault carrier, Citizens was the party directly responsible for payment of property damage benefits. MCL 500.3121; MSA 24.13121. Because Citizens paid for the damage done to the garage and parked automobile, it is entitled to reimbursement from those persons responsible for the damage. Citizens stands in the property owners’ shoes and has the same right of reimbursement as the property owners. This right to reimbursement is similar to the right of indemnity. See 42 CJS, Indemnity, §§ 21, 23, pp 596-598, 600; Langley v Harris Corp, 413 Mich 592; 321 NW2d 662 (1982); Dale v Whiteman, 388 Mich 698, 704-706; 202 NW2d 797 (1972).
We note that, technically, Citizens should have sued in its own name for reimbursement of the property protection benefits rather than as subrogee of Frances Kinkle. However, defendant has not been ignorant of the real object of Citizens’ lawsuit, and given that defendant raises this issue herself for the first time in this Court, we refuse to elevate form over substance to disallow Citizens’ cause of action for reimbursement of property protection benefits paid for damage done by defendant’s minor son. Compare Hiner v State Highway Comm, 96 Mich App 497, 500-502; 292 NW2d 709 (1980), lv den 409 Mich 914 (1980).
Defendant claims that Citizens’ cause of action in this case is barred by § 3135 of the no-fault act, which abolishes tort liability arising from the ownership, maintenance or use of an automobile. Section 3135 states in part:
(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance, or use within this state of a motor vehicle with respect to which the security required by section 3101(3) and (4) was in effect is abolished except as to:
(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his or her act or omission, the person does not cause or suffer such harm intentionally if he or she acts or refrains from acting for the purpose of averting injury to any person, including himself or herself, or for the purpose of averting damage to tangible property.
Ob) Damages for noneconomic loss as provided and limited in subsection (1).
(c) Damages for allowable expenses, work loss, and survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly, and 3-year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his or her liability by the amount of taxes that would have been payable on account of income the injured person would have received if he or she had not been injured.
(d) Damages up to $400.00 to motor vehicles, to the extent that the damages are not covered by insurance. An action for damages pursuant to this subdivision shall be conducted in compliance with subsection (3). [MCL 500.3135; MSA 24.13135.]
We find that § 3135(2) of the no-fault act does not abolish tort liability in the instant case. The parties have stipulated that 15-year-old Joseph Lowery’s operation of the stolen Kinkle automobile was "reckless, to the point of [being] wilful and wanton misconduct.” The Supreme Court in Gibbard v Cursan, 225 Mich 311, 320; 196 NW 398 (1923), described wilful and wanton misconduct, distinguishing it from negligence:
If one wilfully injures another, or if his conduct in doing the injury is so wanton or reckless that it amounts to the same thing, he is guilty of more than negligence. The act is characterized by wilfulness, rather than by inadvertence, it transcends negligence — is different in kind.
The Gibbard Court further noted that wilful and wanton misconduct is in the same class as intentional wrongdoing. 225 Mich 321. See also Burnett v City of Adrian, 414 Mich 448, 462-463; 326 NW2d 810 (1982).
Intentionally caused harm to persons or property is an exception to the no-fault act’s abolition of tort liability. MCL 500.3135(2)(a); MSA 24.13135(2)(a). Because acts resulting from wilful and wanton misconduct fall within the class of intentional acts, defendant’s tort liability in the instant case is not abolished by the no-fault act. In addition, under such circumstances, a no-fault carrier has a right to subtraction from or reimbursement of property protection benefits. MCL 500.3116(2); MSA 24.13116(2).
Citizens’ cause of action against Joanne Lowery has been brought pursuant to the parental liability statute, MCL 600.2913; MSA 27A.2913, which reads:
A municipal corporation, county, township, village, school district, department of the state, person, partnership, corporation, association, or an incorporated or unincorporated religious organization may recover damages in an amount not to exceed $2,500.00 in a civil action in a court of competent jurisdiction against the parents or parent of an unemancipated minor, living with his or her parents or parent, who has maliciously or wilfully destroyed real, personal, or mixed property which belongs to the municipal corporation, county, township, village, school district, department of the state, person, partnership, corporation, association, or religious organization incorporated or unincorporated or who has maliciously or wilfully caused bodily harm or injury to a person.
The statute does not provide a new cause of action but rather provides a method for collecting damages for the tortious conduct of an unemancipated minor child. Liability is imposed for malicious or wilful destruction of property, independent of the means the child employs to cause the destruction. See McKinney v Caball, 40 Mich App 389; 198 NW2d 713 (1972); Shelby Mutual Ins Co v United States Fire Ins Co, 12 Mich App 145; 162 NW2d 676 (1968).
In the instant case, Joseph Lowery operated a vehicle in a manner constituting wilful and wanton misconduct and caused damage to a garage and parked vehicle. Therefore, Citizens is allowed to recover from defendant under the parental liability statute.
Affirmed.
This finding is taken from the parties’ stipulated statement of facts. The circuit court in its opinion concluded that the district court found that the young man operated the automobile "in a manner constituting wilful and wanton misconduct.” The circuit court relied on a statement by the district court in its opinion in the third-party action premised on Pioneer’s failure to defend. In the referenced portion of its opinion, the district court stated:
Defendant Lowery was sued as the mother of an unemancipated minor child, the child having taken a motor vehicle without the consent of the owner and operated the vehicle in a manner constituting wilful and wanton misconduct. Defendant Lowery’s involvement in this case was as a result of being the mother of an unemancipated minor child and not because of any fault on her part.
However, later in the same opinion, the district court judge wrote:
In the instant case, it was decided by this court that the parent would not be liable because of the fact that the damage was occasioned by the use of a motor vehicle and under the no-fault act the operator would not be liable whether he be negligent or reckless, whether he be an adult or unemancipated minor child. The parent’s liability being vicarious, there would be no liability on the part of the parent.
It could fairly be concluded that the trial court’s statements concerning the driver’s conduct were not findings of fact but rather descriptions of the claims made by Citizens — the nature of the claims fixing Pioneer’s duty to defend under the homeowner’s policy. We note this aspect of the record to emphasize that (1) the parties and the circuit court have agreed and acted on the basis of a presumed district court finding of "wilful and wanton misconduct” and (2) no one is challenging the sufficiency of the evidence to support that presumed finding. | [
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Per Curiam.
Plaintiff appeals as of right the property settlement and alimony provisions of a 1985 divorce judgment. We reverse and remand to the trial court for modification of the judgment.
The evidence established at trial below reveals that the parties were married in 1966, in El Paso, Texas, and that one child was born to them on June 16, 1970. The final separation occurred on May 2, 1984. Thus, the parties had been married for over eighteen years. Defendant had two children from her prior marriage who had lived with the parties during most of the eighteen-year marriage. Plaintiff supported these two children until they reached the age of majority.
Plaintiff had twenty years seniority at Chevrolet Manufacturing in Flint, Michigan, having worked there continuously except for a period of military service. According to the trial court, plaintiff earned $560 net per week based upon a fifty-six-hour work week which included overtime. Defendant, on the other hand, had only brief periods of employment early in the marriage. However, around 1982, at plaintiffs urging, defendant became licensed to operate an adult foster care program in her home. Although she was licensed to care for four adults, at the time of trial she cared for only one since she had two children living with her at the time. She received $400 per month from the state for her services under the program.
Plaintiff testified that the marriage broke down due to lack of communication. Defendant testified that she didn’t know anything was wrong with their marriage until plaintiff left her. However, there were at least two separations prior to May, 1984, the first in 1968 and the second in December, 1983. In each instance plaintiff left home. Defendant testified that she resumed the marriage after each separation because she loved plaintiff. Defendant testified that before plaintiff left for the final time in May, 1984, she discovered their automobile parked in front of the home of the woman whom plaintiff eventually moved in with after the final separation.
In granting the judgment of divorce, the trial court found that fault for the breakup of the marriage was plaintiff’s for leaving defendant and maintaining extramarital relationships.
The marital property was distributed as follows:
Plaintiff was awarded:
1961 Thunderbird $ 5,000
1954 Mercury 3.500
1957 Ford 2,000
1949 Ford 2,000
Camper Trailer General Motors stock 1.500 1,600
Pension No value ascertained
Total $15,600 $15,600
Defendant was awarded:
Marital home
Appraised value $42,000
Amount owing 18.873
23,127
Less back taxes 3.000
$20,127 20,127
Rental Property
Appraised value $25,000
Less back taxes 2.400
$22,600 22,600
1978 Suburban $ 800 800
Total $43,527
Further, plaintiff was ordered to assume a $2,600 indebtedness to the credit union and defendant was ordered to assume the $1,000 indebtedness to visa. In addition, plaintiff was ordered to pay $100 per week in permanent alimony and $120 per week in child support.
Plaintiff moved for a new trial, challenging the property settlement, alimony award and child support award. The court denied the motion but modified the judgment with respect to the alimony award. Specifically, the judgment was amended to provide that the alimony payments would cease upon defendant’s death, remarriage, full-time employment, or cohabitation with an unrelated male other than one in her foster care program, or upon plaintiff’s retirement.
Plaintiff first contends on appeal that the trial court abused its discretion in the distribution of the marital property. Although we do not agree with plaintiff’s valuation of the marital home and rental property, we do find that the distribution was inequitable.
In dividing marital assets, a court should seek a fair and equitable distribution. Hatcher v Hatcher, 129 Mich App 753; 343 NW2d 498 (1983). This Court reviews property settlements in divorce cases de novo on the record, but will not reverse or modify the property division unless convinced that it would have reached another result had it occupied the position of the trial court. Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960); Bone v Bone, 148 Mich 834, 838; 385 NW2d 706 (1986).
The trial court has great discretion in the adjustment of property rights upon divorce. The objective in arriving at a property settlement is to reach a fair and equitable division in light of all the circumstances. Bone, supra. There are no set mathematical formulas governing a division of property. The division does not have to be equal, but it must not be inequitable. Bone, supra; Christofferson v Christofferson, 363 Mich 421, 426; 109 NW2d 848 (1961). In making the division, the trial judge must examine several factors: the duration of the marriage, contributions of the parties to the joint estate, the parties’ station in life and earning abilities, fault or past misconduct, and other equitable circumstances. Parrish v Parrish, 138 Mich App 546, 558; 361 NW2d 366 (1984).
In applying these factors to the instant case, we conclude that the trial court abused its discretion in the distribution of the marital property. The marriage at issue was of long duration — eighteen years. During that time, the marital property was accumulated through the joint effort of the parties. Specifically, plaintiff worked continuously at the General Motors plant including overtime while defendant stayed at home caring for the marital home and the children. Both parties have the ability to support themselves although, admittedly, plaintiff’s established earning ability is somewhat greater than defendant’s. However, defendant is relatively young, and is able to develop employment skills or, at least, expand her adult foster care program.
The trial court apparently distributed the property as it did based on plaintiff’s ongoing relationship with another woman prior to the final separation between the parties. The trial court attributed the fault for the breakdown of the marriage to plaintiff. However, fault is not the sole factor to be considered in distribution of marital property. Moreover, from the testimony presented below, it appears that the marriage had been rocky for quite some time. In view of the above factors, we conclude that plaintiff was entitled to more of the marital estate than merely five motor vehicles. Hence, we remand the case to the trial court with instructions to divide the assets of the parties equally.
Plaintiff also contends that the trial court abused its discretion in ordering him to pay defendant $100 per week in alimony and $120 per week in child support until the child reaches eighteen years of age. We agree with plaintiff with respect to the alimony provision, but affirm the child support provision.
An award of alimony is within the discretion of the trial court. Hatcher, supra, p 760. We review such an award de novo and exercise our independent judgment in reviewing the evidence. Graybiel v Graybiel, 99 Mich App 30, 33; 297 NW2d 614 (1980). However, we give grave consideration to the trial court’s findings and will not reverse unless we are convinced that we would have come to a different conclusion if we were in the trial court’s place. Diephouse v Diephouse, 127 Mich App 526, 530; 339 NW2d 42 (1983). Factors to be considered in determining whether alimony should be awarded include: past relations and conduct of the parties, length of the marriage, ability of the parties to work, source and amount of property awarded to the parties, age of the parties, ability of plaintiff to pay alimony, the present situation of the parties, the needs, health, and prior standard of living of the parties, whether the parties support others, and general equity principles. Hatcher, supra.
We conclude that the trial court erred in granting defendant $100 per week in alimony. Although the trial court found that plaintiff earned $560 per week in take home pay, and it appears that he is able to pay the amount ordered, he is also respon sible for $120 per week in child support. Furthermore, although the marriage was of relatively long duration, defendant is only forty years old and is able to develop job skills. In fact, defendant is licensed to operate an adult foster care program in her home and receives $400 per month for doing so. Assuming on remand the trial court awards defendant the marital home, she will be able to continue this program. There is no reason why she can not expand the program or apply her skills developed in this area to other employment. Defendant was awarded an automobile so she has transportation to any other type of work. We conclude that defendant has the ability to work and that her minor health problems do not interfere with this.
Further, even though the trial court found the breakdown of the marriage attributable to plaintiff, as noted above, we find that the marriage was on rocky ground for a long period of time. In view of these factors, we conclude that $100 per week in alimony is excessive. Therefore, we instruct the court, on remand, to reduce the alimony award to a reasonable rate of $75 per week.
Finally, we decline to modify the child support order since we do not find that plaintiff has suffered any change in circumstances justifying the modification. Kalter v Kalter, 155 Mich App 99, 102; 399 NW2d 455 (1986). We find that plaintiff is able to pay this amount which is a fair share of the amount actually necessary to maintain the child in a reasonable standard of living. Kalter, supra, p 104. Accordingly, the child support order is affirmed.
Affirmed in part; reversed in part. Remanded for further proceedings consistent with this opinion. | [
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Shepherd, J.
Petitioner was denied Aid to Families with Dependent Children benefits based on application of the lump sum rule. That decision was affirmed by a hearing referee and the circuit court. This case examines the application of the "lump sum rule,” 42 USC 602(a)(17), in a situation where the lump sum was received by petitioner’s husband and remains unavailable to her after they separated. We reverse and remand for further proceedings.
Petitioner and her husband, Arthur Bulla, were receiving afdc benefits on behalf of themselves and their unborn child. On February 25, 1983, Arthur Bulla received a lump sum workers’ compensation settlement of $20,822. He notified the Department of Social Services about it on March 3, 1983. The dss subsequently determined that the Bullas were ineligible for afdc benefits through May, 1987, based on the lump sum rule, which determines the ineligibility period by dividing a family’s monthly needs into the lump sum received, effectively forcing the family to budget and use the lump sum through the entire ineligibility period. See 45 CFR 233.20(a)(3)(ii)(D) (1982), now 45 CFR 233.20(a)(3)(ii)(F) (1985). The dss closed the Bullas’ afdc case on March 14,1983. This denial is not appealed..
Arthur Bulla apparently began quickly spending the money. According to petitioner’s testimony, the money was deposited into Arthur Bulla’s bank account to which petitioner had no access. He spent $9,500 to purchase a house trailer and ten acres of land on a land contract, $1,800 for a car, $1,100 for a tv, waterbed, microwave, and gas grill, $575 for a tractor, plow, and discs, and $1,000 to repay some of his loans. Most of the remainder of the money he apparently spent on uses for which petitioner cannot account. On one occasion, her husband permitted petitioner to withdraw $294 from the account, which she used for insurance, groceries, and utility bills. Petitioner also stated that she and her husband were advised by a social worker or rehabilitation counselor before spending the money that if it was spent "wisely” on necessary items, such as a home and not "a bunch of odds and ends that we don’t really need,” the Bullas would be able to reapply for afdc benefits.
Petitioner and her husband reapplied for benefits on June 13 and July 25, 1983. Both applications were denied because of the lump sum rule, and they did not appeal. By the second reapplication, petitioner’s child was born and special permission was sought to open afdc benefits for the child only. This was denied. Medicaid and food stamps were provided, however.
Petitioner’s husband left her on August 10, 1983, after a history of domestic abuse. He filed for divorce on August 15, 1983. According to petitioner, she received no support or income at that time. The land contract went into default, but petitioner continued to live in the trailer and kept the waterbed. Her husband kept all the other items. Petitioner reapplied for afdc on August 25, 1983. A policy exception was requested, as the lump sum money was never made available to petitioner. Benefits were approved for her child, but again denied petitioner under the lump sum rule. Petitioner appealed, and a hearing was held on January 10, 1984, at which petitioner testified.
The referee considered two issues: (1) whether the lump sum workers’ compensation settlement received by her husband made petitioner ineligible for afdc under the lump sum rule and (2) whether petitioner would become eligible for afdc benefits if her excessive income were no longer available. The referee’s findings of fact included the following items very pertinent to our discussion: (1) Arthur Bulla received the settlement in his name only and deposited it in his own bank account, (2) petitioner was authorized to spend only $294 of this money; she received only this sum for the maintenance and care of herself and her child, (3) prior to spending the money, petitioner’s husband was told that its receipt would not affect assistance eligibility if it was wisely spent, (4) petitioner presently had no access to or control over any settlement monies left, which, if they existed, were under Arthur Bulla’s sole control and unavailable to petitioner. The referee, however, affirmed the denial based on the lump sum rule on January 17, 1984. The circuit court affirmed on January 16, 1986.
Petitioner first argues that the lump sum rule applies only to income and not to a workers’ compensation award. We find no merit in this argument. This Court has consistently held that the lump sum rule applies to workers’ compensation awards and similar payments such as personal injury awards. Dukaj v Dep’t of Social Services, 152 Mich App 433; 394 NW2d 38 (1986); Collingsworth v Dep’t of Social Services Director, 146 Mich App 186; 379 NW2d 417 (1985); Zarko v Dep’t of Social Services Director, 144 Mich App 576; 375 NW2d 765 (1985); Tyrna v Dep’t of Social Services, 142 Mich App 591; 370 NW2d 410 (1985); Brancheau v Dep’t of Social Services Director, 141 Mich App 527; 367 NW2d 357 (1985). The lump sum rules have since been amended, by adding specific examples such as workers’ compensation and lottery winnings, to clarify their application to unearned income. 51 Fed Reg 9205 (1986) (to be codified at 45 CFR 233.20[a][3][ii][F]).
The application of the lump sum rule to this particular workers’ compensation award in its entirety was error, however. A state’s method of determining afdc eligibility must be consistent with the objective of assisting all eligible persons to qualify. 45 CFR 233.10(a)(l)(vii) (1985). A determination of need and amount must be made on an objective and equitable basis, taking into account all types of income. 45 CFR 233.20(a)(l)(i) (1985). We believe it was improper to determine that petitioner was ineligible based on a workers’ compensation settlement over which her husband had sole control now that petitioner is on her own.
The version of the federal regulation in effect at the time petitioner reapplied for benefits, 45 CFR 233.20(a)(3)(ii)(D) (1983), provided in part:
For purposes of applying the lump sum provision, family includes the afdc assistance unit and any other individual whose lump sum income is counted in determining the period of ineligibility.
We believe it was improper to continue to include Arthur Bulla’s lump sum in the calculation after he had left petitioner, particularly since petitioner had almost no access to or control over the lump sum prior to that time. Arthur Bulla should not have been counted as part of petitioner’s family at the time of her reapplication.
The 1983 regulations allowed dss to shorten the ineligibility period when it found that a life-threatening circumstance existed. The current version of the regulation, 45 CFR 233.20(a)(3)(ii)(F) (1985), provides a definition of family more favorable to petitioner and a provision for shortening ineligibility which we believe should apply here:
For purposes of applying the lump sum provision, family includes all persons whose needs are taken into account in determining eligibility and the amount of the assistance payment. A State may shorten the remaining period of ineligibility when: the standard of need increases and the amount the family would have received also changes; the lump sum income or a portion thereof becomes unavailable to the family for a reason beyond the control of the family; or the family incurs and pays for medical expenses. If the State chooses to shorten the period of ineligibility, the State plan shall:
(1) Identify which of the above situations are included;
(3) In the case of situations involving the unavailability of the lump sum income, include a definition of unavailability, and specify what reasons will be considered beyond the control of the familyf.] [Emphasis added.]
It is unclear, however, which situations are included in dss’s plan, as dss cites primarily federal regulations in its brief.
Petitioner’s August 25, 1983, application was effectively a new application, as evidenced by the benefits given her child at that time. The dss should have examined petitioner’s situation at the time of reapplication. We believe it was improper to impute Arthur Bulla’s wrongdoing to petitioner after the referee specifically determined that petitioner received only $294 of the workers’ compensation settlement. Despite the apparent harshness of the result, application of the lump sum rule was proper while petitioner and Arthur Bulla were living together as a family. The rule’s purpose is to require budgeting of the lump sum by the family. In such a situation, the exclusive control over the lump sum by one family member may pose a significant problem, but it is clear that spending the lump sum does not eliminate application of the lump sum rule. Collingsworth, supra, p 196. We hold, however, that the lump sum rule could not apply to petitioner after Arthur Bulla left except for any portion of the lump sum over which petitioner had control or from which she received some direct benefit. The referee’s findings indicate that petitioner had no control over any of the lump sum after her husband left, and that only $294 of the lump sum went to the maintenance and care of petitioner and her child. Petitioner’s ineligibility for afdc as a result of this $294 would have ended long before her husband left. By continuing to apply the lump sum rule to petitioner after her husband left her, the referee applied an incorrect principle of law. Accordingly, we remand and order dss to reinstate petitioner’s benefits totally as of the date her husband left her. This reinstatement must be done immediately.
Petitioner also objects to a lack of notice concerning the effect of the lump sum rule. In light of our holding above, this issue relates to the applicability of the lump sum rule to the workers’ compensation settlement in the approximately five-month period before Arthur Bulla left. We note that this issue was apparently not presented to either the referee or the circuit court. Like the Court in Zarko, supra, p 581, however, we believe it is necessary to consider this issue. While we would not normally consider this issue, we believe it is dispositive of the remaining questions. Moreover, the issue is important to the jurisprudence of this state in this difficult area of law, as will become evident from the discussion below. Guidance is necessary in this important area to prevent similar mishaps involving the unwise spending of lump sum settlements.
Petitioner’s argument involves 45 CFR 206.10(a)(2)(i):
Applicants shall be informed about the eligibility requirements and their rights and obligations under the program. Under this requirement individuals are given information in written form, and orally as appropriate, about coverage, conditions of eligibility, scope of the program, and related services available, and the rights and responsibilities of applicants for and recipients of assistance. Specifically developed bulletins or pamphlets explaining the rules regarding eligibility and appeals in simple, understandable terms are publicized and available in quantity.
The rule’s purpose is to enable assistance recipients to make financial and other decisions based on accurate knowledge of the complex array of statutes and regulations regarding assistance. This purpose is best effectuated by providing practical assistance to recipients to deal with specific problems as they arise, rather than by giving pro forma notice of every conceivable statute and regulation. In Zarko, supra, p 582, the rule was construed as requiring dss to initially inform applicants about the general rules governing eligibility and client rights and obligations, to respond promptly to pertinent inquiries by applicants and recipients, and to inform applicants and recipients promptly of specific rules relevant to matters reported to dss. Such a notice requirement is certainly less severe than the advance written notice to all recipients and applicants required by the court in Slaughter v Levine, 605 F Supp 1242 (D Minn, 1985), and compliance should not unduly burden dss.
In Zarko, dss had no knowledge that the claimant would receive or had received a lump sum payment before the claimant reported it. The claimant knew that she had to report a receipt of the lump sum, but failed to do so before disposing of it. In the instant case, petitioner’s husband promptly reported receipt of the lump sum on March 3, 1983. According to petitioner, however, dss never informed the Bullas of their rights and responsibilities with regard to use of the lump sum, particularly the requirement that it be budgeted for the entire ineligibility period. Petitioner argues that she specifically needed such information because she and her husband relied on the advice of a counselor or social worker who told them they could spend the money "wisely” without affecting their eligibility. What happened here is precisely what the rule seeks to prevent.
On appeal, dss only addresses the advice of this unknown person to the Bullas. The dss ignores petitioner’s allegations that the record contains no evidence of any disclosure by dss until August 4, 1983, when it denied the Bullas’ second application. Our review of the material presented to the referee has uncovered only a handwritten, August 4, 1983, attachment, signed by an assistance payments worker:
Your lump sum case closure of 3/14/83:
A) You are ineligible until June, 1988
B) Zero income will be left over to budget for June, 1988
C) Your adc needs at case closure were $331/mo per the adc record at closure 3/83
D) This ineligibility period may be shortened if some of the money is used to meet a life threatening circumstance (you have now spent most of money and you have now been approved for ma)
E) Any person who was not part of the assistance group 3/83 when this determination was made may be eligible as a separate assistance group. (Policy reads one of the parents must be in eligible group if case is adc-u and neither of you can be because you were both in group at adc Closure)
F) This lump sum money you received should not be commingled with other assets.
According to petitioner, most, if not all, of the money was spent by August 4, 1983, and her husband left six days later.
If this were the earliest formal notice given to petitioner and her husband, it does not comply with 45 CFR 206.10(a)(2)(i). While no case has discussed the ramifications of such noncompliance, we believe that noncompliance would prevent application of the lump sum rule to petitioner. To do otherwise would penalize petitioner for dss’s failure to comply with a rule designed to prevent such occurrences.
Considerable time has elapsed since petitioner applied for benefits. The end of the ineligibility period is, in fact, drawing near. We would prefer to decide this issue completely without the need for a hearing on remand. We do not have petitioner’s entire dss file before us, however, and so cannot determine what information was given to the Bullas and when it was given. Accordingly, we remand to dss for an administrative hearing within thirty days on the notice issue. The August 4, 1983, information was both untimely and inadequate under the regulations and Zarko. If other timely and adequate notice was not given, the lump sum rule could not be applied to petitioner prior to her husband’s leaving, and we order dss to reinstate these benefits retroactively.
In summary, the referee adopted an incorrect principle of law by applying the lump sum rule to petitioner after her husband left her. As the referee found that petitioner had no control over the money after her husband left and used only $294 for maintenance and care of herself and her child before her husband left, dss shall reinstate petitioner’s benefits as of the date petitioner’s husband left her, i.e., August 10, 1983. We do not wish to imply that a spouse must leave the marital home before the lump sum rule becomes inapplicable. This would encourage the rupture of family unity. Our emphasis is on control, benefit and on a determination of who was responsible for the misuse of the lump sum award. The date of the husband’s departure in this case merely furnishes a point in time where the wife’s responsibility and control clearly came to an end, especially in view of the referee’s findings that indicate that she had little responsibility or control from the beginning.
We remand for a hearing within thirty days on the notice issue. If dss finds that petitioner received no other adequate and timely notice as required under the rules outlined above, it shall also immediately reinstate petitioner’s benefits for the entire ineligibility period.
Reversed and remanded.
Sullivan, P.J., concurred. | [
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Per Curiam.
Plaintiff filed a complaint in circuit court seeking payment of benefits, pursuant to a no-fault insurance policy, for certain medical expenses incurred due to injuries plaintiff sustained in an automobile accident. Dr. B. S. Bohra, a participating physician in Blue Cross and Blue Shield of Michigan, treated plaintiff for injuries received in the accident. As a participating physician, Dr. Bohra contracted with bcbsm that he would accept as payment in full, for services covered by bcbsm, the amount paid by bcbsm and would not bill the patient for the excess. Bills for Dr. Bohra’s services were submitted to bcbsm and the defendant. bcbsm paid Dr. Bohra pursuant to a reimbursement agreement for those services covered by bcbsm and defendant paid Dr. Bohra for those charges not covered by bcbsm. In the instant action plaintiff seeks to recover from defendant the difference between the set reimbursement rate paid by bcbsm and the treating physician’s customary charge for such services. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10) contending that there was no genuine issue as to any material fact and defendant was entitled to judgment as a matter of law. Following argument on the motion, the circuit court granted summary disposition in favor of defendant. Plaintiff now appeals as of right, arguing that the circuit court erred in granting defendant’s motion for summary disposition. We disagree.
In Dean v Auto Club Ins Ass’n, 139 Mich App 266, 273; 362 NW2d 247 (1984), lv den 422 Mich 921 (1985), this Court held that a physician who participates in bcbsm cannot seek additional payment from a no-fault insurer over and above that received from bcbsm. This Court specifically stated:
[T]he Legislature did not intend to allow participating health care providers to seek additional reimbursement from no-fault insurers over and above the bcbsm reimbursement rate. The no-fault act was as concerned with the rising cost of health care as it was with providing an efficient system of automobile insurance. And there is little doubt that the legislation governing health care corporations (bcbsm), MCL 550.1101 et seq.; MSA 24.660(101) et seq., had as its chief concern the affordability of health care. See generally the discussion in Blue Cross & Blue Shield of Michigan v Insurance Comm’r, 403 Mich 399; 270 NW2d 845 (1978). Accordingly, plaintiffs may not participate in the bcbsm health care plan and then frustrate the legislative attempt to contain health care costs by simply seeking payment on the excess from no-fault insurers. [Dean, supra, pp 273-274.]
Plaintiff argues that Dean does not apply to the instant case because the costs sought here are not for covered services. Plaintiff goes into a detailed discussion of second surgeries performed on the same day and the bcbsm policy of tendering only partial payment, if any. Plaintiff argues that the second surgery is thus analogous to an office visit, a service not covered by bcbsm and billable to the no-fault insurer when personal injury protection benefits are concerned. However, plaintiff’s argu ment is flawed in that plaintiffs treating physician received payment from bcbsm for each surgical treatment rendered to plaintiff. It is true that the doctor did not receive the total amount he requested, or even substantially what he had requested, but by the terms of the doctor’s contract with bcbsm he had agreed previously to accept as payment in full whatever reimbursement he received from bcbsm. Contrary to plaintiff’s contention, Dean is on point and dispositive of the issue presented here. The circuit court did not err in granting summary disposition in favor of defendant.
Affirmed. | [
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Voelkbr, J.
There is a statute in this State which says that when an “appeal is taken from a decree of foreclosure of a mortgage or land contract” the appellant shall include in his appeal bond a condition that he shall “pay to the appellee the damages which may result to the appellee from the stay of proceedings.” (CL 1948, § 650.23 [Stat Ann 1943 Bev § 27-.2613].) To the same effect is our court rule (Court Buie No 62, § 1 [1945]), which says:
“No appeal, other than appeals from probate courts, shall operate as a stay of execution unless .and until an appeal bond to the adverse party or to .such other party or official as shall be expressly required by the statute authorizing the appeal shall be filed, in the amount and with the sureties provided by law, conditioned (1) to prosecute the appeal to effect, (2) to perform and satisfy the judgment, decree or order of the appellate court, (3) to perform and satisfy the judgment, decree or order appealed from in case the appeal should he dismissed or discontinued, (4) in appeals from a decree of foreclosure of a mortgage or land contract, to pay to the appellee the damages which may result to the appellee from the stay of proceedings, and (5) to do any other act which shall he expressly named, in the statute authorizing the appeal, as a condition of the appeal bond.” (Emphasis added.)
The quoted statute and court rule, by omission, impliedly but plainly exempts the need for a provision for damages in an appeal bond growing out of a decree for other relief, including specific performance, an ordinary appeal bond in such event being sufficient. From this circumstance the present appeal arises.
In 1946 "William and Florence Schramke purchased a farm on a land contract from plaintiff-appellant, Frances Hartman. The Schramkes fell behind- in their payments and Frances Hartman brought a suit in equity to foreclose the land contract. In that action the Schramkes filed a cross bill for specific performance and the case resulted in a decree granting their prayer for specific performance (May 13,1953) conditional upon the Schramkes making certain payments to Mrs. Hartman within 60 days. Those payments not having been made Mrs. Hartman, the appellant here, obtained a writ of assistance. The Schramkes then filed a general appeal, which after a considerable time was apparently dismissed for lack of perfecting the appeal. To secure that appeal they filed the presently controverted bond for $2,000. Because of the appeal Mrs. Hartman stayed execution of her writ of assistance pending the outcome of the appeal. In the meantime the Schramkes stayed in possession of the farm.
The present appeal results from a dismissal of Mrs. Hartman’s subsequent.declaration at law alleging that the Schramkes’ appeal bond in the prior equity case was in legal effect a stay bond under the statute (that is, that the bond should have read into it the statutory provision for damages) and that Mrs. Hartman was consequently entitled to damages resulting from her stay of her writ. The trial court held that Mrs. Hartman had stated no cause for action because the bond in question was to secure an appeal from a decree for specific performance.
In his opinion of dismissal the learned trial judge said, in part:
“It is the court’s opinion that this matter can be disposed of on his [Schramke’s] motion to dismiss, as the action is brought upon the appeal bond filed in case No. 3795 and if there is no liability on the bond plaintiff has not set out a cause of action. It is the court’s opinion the defendants’ motion to dismiss should be granted. Neither party in their briefs have cited, nor can the court find any statute that requires an appeal bond in specific performance cases to contain a provision for damages. The statute and court rules only provide a bond with damages resulting from a stay of proceedings in mortgage or land [contract?] foreclosure proceedings. Since that is the rule, the court does not feel that it can now read in a provision for damages and thus hold the defendants and surety liable on the bond. The surety is limited in liability strictly by the terms of his contract and any extension of liability by implication beyond the strict letter is forbidden. This bond apparently was sufficient to appeal a specific performance decision.” (Emphasis added.)
Thus we observe that the controlling issue in this case (was the decree in the prior case one of foreclosure or of specific performance?) was decided as a question of fact by the trial judge in the same court that granted the original decree.
Appellant having failed to:set out in’her.'statement of questions involved any question concerning the trial judge’s determination of that fact question, this Court will not review his decision. See Court Rule No 67, § 1 (1945) and Hett v. Duffy, 346 Mich 456. Even were we inclined to disregard this rule, it would he impossible to review the decision as appellant has not seen fit to include the decree or any evidence concerning its nature in her record on appeal. There being no adequate showing before us to the contrary (other than appellant’s unsupported allegations) we would in any case have no alternative but to accept the finding of the trial judge on this score.
In applying the trial judge’s determination of the fact question to the statute and court rule already discussed, it follows that the bond in question was adequate. In view of this decision it. is' not'Accessary for us to decide, as appellant insists,' whether the missing condition .needed to make the.- bond a statutory stay bond may be read. into it... That vexing question could only have arisen had the Schramkes appealed from a decree of foreclosure for Mrs. Hartman and filed such a bond as they did file.
We may observe in passing that even had the prior appeal been from a decree of foreclosure, it would then appear that plaintiff’s present action would be tantamount to a proceeding • aimed to reform the bond, with incidental money relief.. Had that been the case we suggest, without deciding, that her action might more properly have been pursued on the equity side of that venerable fence which still divides our administration of justice.
The decision of the trial court is affirmed. Costs to appellees.
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Voblker, J.
Dethmers, C. J., and Carr and Kelly, JJ., concurred in the result. | [
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Edwabds, J.
From pleadings in this record we learn this controversy started at 5:30 a.m. on December 20, 1951, when an oil truck and trailers owned by the plaintiffs (other than the insurance company) and a car owned and driven by defendant came into collision.
The facts relevant to our instant appeal are agreed upon by the parties as follows:
' “December 9, 1953, Jones and Wolf, Johnson Oil Company and American Fidelity Fire Insurance Company, subrogee by a prior assignment, started suit in Shiawassee county against Chambers for $6,925.41 damage to a tractor and trailer owned by Jones, Wolf and Johnson Oil Company plus $1,750 lost net earnings to Jones and Wolf, alleging the same to have been caused by Chambers’ breach of statutory duty to pass to the right and other specified negligence, alleging a want of their own negligence contributing to their own damages.
“December 24, 1953, Chambers and the Citizens’ Mutual Automobile Insurance Company, his previously subrogated assignee, started suit in Isabella county against Jones, Wolf, Johnson Oil Company and Leon F. Hapner, as driver, for ‘damage to person and property to the extent of $10,000,’ alleging a cause of action through Hapner’s breach of statutory duty to have his vehicle under control and other specified negligence, and asserting a want of Chambers’ negligence contributing to Chambers’ own damages.
“June 14, 1954, the Isabella cause of action was tried and judgment was subsequently entered for plaintiff therein on the jury’s verdict.
“On December 28, 1955, the Shiawassee county trial court dismissed the Shiawassee cause of action on the grounds that it had been heard and decided as to all parties therein during the Isabella county trial, for reasons stated in the court’s opinion.”
Thus we are ashed to determine whether or not the defendants (plus their insurance company) in the later-filed but first-tried Isabella county suit can now maintain an action for damages arising out of the same accident in Shiawassee county circuit court even though judgment was rendered against them and has become final in the prior trial in which they did not cross-declare.
The right to file a cross-declaration in a tort action did not exist at common law; it was created by statute. Annotation, 10 ALR2d 1167. The Michigan statute which we are here called upon to construe plainly makes the right to cross-declare optional with the cross-declarant:
“In any action hereafter brought in any court of the State to recover damages for any injury to person or property, wherein recovery is sought because of the alleged negligence of the defendant, or of his agent, servant, representative, or employee, or for the alleged breach of a statutory duty owing thereby, such defendant may at the time of filing and serving his plea, also file and serve a cross-declaration against the plaintiff setting forth the facts in any cause of action for damages or injury to his person or property because of the alleged negligence of the plaintiff or his agent, servant, representative or employee he may have against said plaintiff arising out of the occurrence, forming the basis of plaintiff’s case. Thereupon such plaintiff shall proceed as though an independent action had been started against him by defendant and shall plead to such cross-declaration or take such other step with reference thereto as may be authorized by statute or by rule of court: Provided, That with the permission of the court such cross-declaration may be filed and served subsequently to the filing and service of defendant’s plea.” CL 1948, § 615.11 (Stat Ann § 27.836).
The statute "has been thus interpreted in Republic Automobile Ins. Co. v. Maedel, 253 Mich 663.
See, also, Seager v. Foster, 185 Iowa 32 (169 NW 681, 8 ALR, 690).
“The general rule is that a defendant, having a claim available by way of set-off, counterclaim, or cross petition, has an election so to plead it, or to reserve it for a future independent action, and a prior action in which a claim might have been asserted as a set-off, counterclaim, or cross petition is no bar to a subsequent independent action thereon.” Annotation, 8 ALR 695.
Republic Automobile Ins. Co., supra, is, however, not directly in point in the current situation since the suit there relied upon to bar a negligence action was still pending. In the opinion, however, Justice Clark said (p 665):
“The defense of former suit pending is availing when — ‘if the first suit had been decided, it could be pleaded in bar as a former adjudication.’ 7 RCL, p 1069. A verdict of no cause of action, and judgment thereon, in the former suit would not be a bar to the second suit.”
Indeed, even a verdict and judgment against the defendant who later brings action pertaining to the same event may not always be a bar. In Mimnaugh v. Partlin, 67 Mich 391, where a farm laborer sought and received judgment for his pay for cutting and stacking wheat, the farmer subsequently was allowed his action for damages due to -improper care of the wheat during cutting and stacking. He had failed to file recoupment in the first suit, and the Court held he did not have to. The Court held the prior judgment not res juclicala, since the second suit was based on a claim of negligence which was not decided in the prior case.
Thus neither the statute, nor the fact of suit pending, nor even the fact of a prior final judgment in a case arising out of the same occurrence, answers our question fully.
Let us examine whether the cause of action in Shiawassee county is actually res judicata because -of the Isabella judgment.
The parties to the 2 suits are not the same. Generally, they are reversed, with the defendants in the former suit now- suing and the former plaintiffs being .sued. Both a plaintiff and a defendant in the former suit are unnámed iu the second suit, and a new party, the American Fidelity Fire Insurance Company, has ■appeared as a plaintiff. Thus it is clear that the ' Shiawassee county suit represented a different cause of action from that tried and decided in Isabella county. A comparison of the 2 declarations and the sets of answers thereto indicates clearly that the claim of damages made by our instant plaintiffs was not pleaded or litigated in the Isabella county trial.
Our ultimate decision, however, must be made in relation to appellee’s contention that the basic issues of fact upon which appellants’ Shiawassee county case rests were pleaded, litigated and finally decided in the Isabella county case.
A careful comparison of the 2 sets of declarations .and answers shows this to be the case. The essential allegations of negligence on the part of the truck driver, a defendant in the Isabella case, are the same as the appellee-defendant’s claims of contributory negligence in the instant suit. ' And the allegations of contributory negligence in relation to the driver ■of the passenger car, plaintiff in the Isabella case, are the same as appellant-plaintiffs’ allegations of negligence in the instant suit.
As the circuit judge pointed out:
V‘Tn the Isabella county action it has been finally determined by verdict and judgment that the plaintiffs, Leslie Jones, Jr., Philip Wolf, Lewis C. Johnson and Glen Johnson, doing business ,as Johnson Oil Company, were guilty of negligence; that defendant was free from contributory negligence, and that such plaintiffs’ negligence was the proximate cause of- defendant’s 'damages. How then can plaintiffs, Leslie Jones, Jr., Philip Wolf, Lewis C. Johnson and Glen Johnson, doing business as Johnson Oil Company, retry in a new and separate action, issues which have once been tried and decided adversely to them, and as a result of an unappealed judgment, have become final? To permit this might result in different judgments on the same issues, and between the same parties in different jurisdictions throughout the State. Such a possible result should not be countenanced. By virtue of the judgment in Isabella county, the plaintiffs, Leslie Jones, Jr., Philip Wolf, Lewis C. Johnson and Glen Johnson, doing business as Johnson Oil Company, are now estopped to assert either that defendant was negligent or that they were free from contributory negligence, both of which they must allege and prove in order to recover.”
Where issues of fact or law have been finally decided by a court of competent jurisdiction in one legal action which are essential to the maintenance of another legal action, it is universally held that the second action must fail.
Michigan’s leading case on the doctrine of res judicata is Justice Cooley’s opinion in Jacobson v. Miller, 41 Mich 90. The second headnote gives us this pertinent summary:
“An adjudication is conclusive in respect to (1) the subject matter of the litigation, and (2) the point of fact or law or both necessarily settled in determining the issue on the subject matter.”
See, also, Viaene v. Mikel, 349 Mich 533.
The courts have, however, divided to some degree as to whether the principle involved is an application of the doctrine of res judicata, or a somewhat separate doctrine of collateral estoppel.
The,. United States supreme court has answered this problem in legal linguistics thus: original suit ‘only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.’ This latter aspect of res judicata is the doctrine of collateral estoppel by judgment, established as a procedure for carrying out the public policy of avoiding repetitious litigation.” Partmar Corporation v. Paramount Pictures Theatres Corp., 347 US 89, 90, 91 (74 S Ct 414, 98 L ed 532).
“We have often held that under the doctrine of res judicata a judgment entered in an action conclusively settles that action as to all matters that were or might have been litigated or adjudged therein. But a prior judgment between the parties has been held to operate as an estoppel in a suit on a cause of .action different from that forming the basis for the
The distinction is annotated at some length in 88 ALE 574.
See, also, 30A Am Jur, Judgments, §§ 327, 328.
One other problem of moment is presented in this appeal. Appellants appear to imply that the insurance company plaintiff in the instant case has rights in this litigation which may subsist regardless of adverse decision as to whether the claims of the other plaintiffs are barred by the prior Isabella adjudication. Their briefs argue that the American Fidelity Fire Insurance Company was not a party to the prior litigation and, hence, cannot be bound by it
This argument overlooks the fact that American Fidelity Fire’s rights in-the instant case are entirely derivative, being based wholly upon assignment by the plaintiffs after payment of insurance-covered property damage.
The circuit judge said on this point:
“As a result of the assignment, plaintiffs’ insurer became subrogated to its insured’s rights, to the extent of the payment made by it. No greater rights against the defendant were thus created than those possessed by the plaintiffs’ insured at the time of the assignment, nor were defendant’s rights in any way lessened thereby. The assignment created nothing; It simply passed to plaintiffs’ insurer rights already in existence, if any. If plaintiffs’ insured had no rights, then plaintiffs’ insurer ac quired none by virtue of the assignment. To rule otherwise would be to give to such an assignment some strange alchemistie power to transform a dross and. worthless cause of action into the pure gold from which a judgment might be wrought. In the case of Indemnity Insurance Company of North America v. Otis Elevator Company, 315 Mich 393 (171 ALR 266), the Court said on page 397:
“ ‘Here the plaintiff, as assignee and subrogee of the hotel company, seeks to recover from the elevator company the full amount which it had paid as the hotel company’s insurer. Its rights against the elevator company were the same as, but no greater than, the rights of its assignor, the hotel company.’
“It having been determined in Isabella county that plaintiffs’ assignor had no rights as the result of the accident here in question, it must therefore follow that plaintiffs’ insurer may not recover in this action.”
We agree.
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Voélker, and Kavanagh, JJ., concurred. | [
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Levin, J.
The question, as stated by defendant-appellant City of Highland Park, is whether "the Workers’ Compensation Appeal Board err[ed] as a matter of law by not applying the chain-of-causation test to determine whether or not the deceased’s suicide resulted from a personal injury arising out of and in the course of employment.” We hold that the WCAB did not so err, and affirm.
I
Arlie C. Hammons committed suicide on December 26, 1974. Pamela Hammons, his former wife, filed a claim for death benefits under the workers’ compensation act on her own behalf and on behalf of her minor children. A hearing referee denied benefits. The WCAB reversed and awarded benefits "having found that decedent’s profound emotional disorder, which led to his suicide, was produced by a combination of non-work-related and work-related factors. Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1 [268 NW2d 1] (1978).”
Hammons, an 18-year veteran of the Highland Park Police Department, had advanced to the rank of corporal and was working as an acting temporary sergeant at the time of his death. The WCAB appears to have adopted the testimony of witnesses who "all agreed that [Hammons] desperately wanted and strove for a promotion to sergeant in 1974.” He had taken a promotional examination in 1972 and was at the top of the list. One week before his death, he learned that "his chances for future promotion were considerably reduced.” The WCAB said, adopting the testimony of witnesses, that his reaction was to become "very upset” and "very depressed.” Detective Grimm related a conversation with Hammons on the morning of his death that "revolved around decedent’s depression about the dropping of the complaint [to require the city to restore sergeant posts that it had eliminated] and his feeling that he would never get the promotion that he so very greatly wanted. It appeared that decedent had been crying.” In addition, Hammons was disturbed about having to return to the ranks after working as acting sergeant. Hammons told his son that "he didn’t feel that he would be able to work with his fellow officers again because of the bad feelings” created when he "had to supervise and report on” them. The opinion of the WCAB referred to a note, written by Hammons immediately before his death, that said:
"Where is the End (ask Grimm). The pressure & the agony is just too great to bear. To notify [an aunt, a cousin, and sons and daughters] Love to all. Arlie C. Hammons.” "Ace,” "I have been very unhappy the last 30 years.” (Emphasis in the original.)
The WCAB stated that its review of the record persuaded it that Hammons’ "desire for advancement was a major subject of discussion and preoccupation during his final year of life.” The WCAB found "that his disappointment in this endeavor, coupled with real and with anticipated problems with co-workers, were major factors in the development of decedent’s extreme depression and resultant suicide.” The WCAB said that it had rejected testimony of the city’s expert witness that Hammons’ "emotional state and death were the direct result of his non-work-related problems and not at all contributed to by any difficulties in his employment. We find more reasonable the opinion of [Mrs. Hammons’ expert witness] that both work- related and non-work-related problems combined to produce decedent’s illness and death. The existence of those non-work-related difficulties does not negate the compensability of the work-related factors. Kepsel v McCready & Sons, 345 Mich 335 [76 NW2d 30] (1956).”
The WCAB denied Mrs. Hammons benefits, stating that she is precluded from obtaining benefits because she was no longer married to or living with Hammons at the time of his death. Death benefits were awarded to daughters born in 1960 and 1966.
The Court of Appeals denied leave to appeal. This Court granted leave to appeal. The only issue on this appeal is whether benefits were properly awarded to Hammons’ daughters._
II
The City of Highland Park contends that this Court should adopt the "chain of causation” test for determining when a worker’s death by suicide is the result of "a personal injury arising out of and in the course of employment.” This test was favored by Justice Souris and two other justices in Trombley v Coldwater State Home & Training School, 366 Mich 649, 669; 115 NW2d 561 (1962), where a decision of the WCAB awarding compensation to the widow of a worker who had committed suicide during the course of a legislative investigation of alleged mistreatment of patients at a mental institution where the worker was an attendant nurse was affirmed by an equally divided Court. The other three justices sitting in the case, in an opinion by Justice Carr, said that compensation should be denied because the general rule, as set forth in Sponatski’s Case, 220 Mass 526; 108 NE 466 (1915), and subsequent decisions, is that workers’ compensation benefits are not recoverable because of the suicide of a worker "injured in the course of his employment, such injury arising therefrom, unless as a proven result the suicide has occurred in a moment of insane frenzy or because of irresistible impulse. Deliberate planning of an act of suicide, with mental ability to understand the nature of the act, involves the introduction of an intervening cause in the chain of circumstances to which cause the death must be attributed.” Trombley, p 660. Justice Carr concluded that Trombley’s mental condition was not the result of a physical injury sustained in the course of employment, as the evidence showed planning, not an act committed in an emotional or insane frenzy or in obedience to an irresistible or uncontrollable impulse. Id., pp 658, 660, 661.
The city asserts that the WCAB applied still a third test, the "honest, though mistaken, perception” test stated in Deziel v Difco Laboratories, Inc, supra, and notes that the Court of Appeals, after decision by the WCAB in the instant case, adopted the Deziel test in another case. Lopucki v Ford Motor Co, 109 Mich App 231, 235; 311 NW2d 338 (1981).
We agree with the city that the chain-of-causation test is the correct test, but are satisfied that the WCAB applied that test and not the Deziel test.
Ill
The first inquiry is whether the worker who committed suicide received "a personal injury arising out of and in the course of employment.” The second inquiry, the Sponatski-Trombley question, is whether there is an adequate causal nexus between the work-related injury and the suicide.
A
We first consider whether Hammons received "a personal injury arising out of and in the course of employment.” Justice Souris observed in Trombley that this Court had "held that compensation benefits are payable for incapacity to work because of a claimant’s mental disorder arising out of and in the course of his employment, whether or not such mental disorder results from a direct physical blow to claimant’s body.” That construction of the act is now well established.
The finding of the WCAB that Hammons had suffered a "profound emotional disorder” which led him to commit suicide supports the implicit finding of the WCAB that Hammons received a "personal injury.” The further finding that this injury arose out of and in the course of the employment acknowledged that both work-related and non-work-related factors led to Hammons’ emotional disorder. Both Deziel and Kepsel, relied on by the WCAB, together with other authorities, fully support the conclusion of the WCAB that "[t]he existence of those non-work-related difficulties does not negate the compensability of the work-related factors.” The WCAB’s conclusion that Hammons suffered a personal injury in the form of mental illness arising out of and in the course of the employment appears to have been reached by analysis conforming to the applicable rules of law.
B
We turn to the second inquiry, the adequacy of the causal nexus between the work-related injury and the suicide. In Sponatski', supra, the Supreme Judicial Court of Massachusetts affirmed an award of compensation based on a finding by the administrative tribunal that the worker, while insane as a result of his injury and acting from an uncontrollable impulse, threw himself from a window and was fatally injured. Although not necessary to decision, the Court stated in dictum a rule that came to be adopted in a majority of jurisdictions. The Court said that where, as in the case before the Court, "there follows as the direct result of a physical injury an insanity of such violence as to cause the victim to take his own life through an uncontrollable impulse or in a delirium of frenzy 'without conscious volition to produce death, having knowledge of the physical nature and consequences of the act,’ then there is a direct and unbroken causal connection between the physical injury and the death. But where the resulting insanity is such as to cause suicide through a voluntary wilful choice determined by a moderately intelligent mental power which knows the purpose and the physical effect of the suicide act even though the choice is dominated and ruled by a disordered mind, then there is a new and independent agency which breaks the chain of causation arising from the injury.” Sponatski, supra, p 530.
The Sponatski formulation requires a mental illness of such severity as to cause the victim to take his own life through an uncontrollable impulse or in a delirium of frenzy without conscious volition. In Trombley, supra, Justice Souris and two other justices were of the opinion that although the workers’ compensation benefits awarded to Trombley’s widow could be affirmed in the application of the Sponatski voluntary-wilful choice test or the chain-of-causation test, the Sponatski test should be rejected. _
We agree with Justice Souris, the city, Professor Larson, and commentators generally, who have urged the adoption of the chain-of-causation test, that the questions of causation or intervening causation and intention should not turn on whether the worker knows what he is doing. A mind disoriented by physical or mental pain may be so impaired in its reasoning capacity that, although aware of the choices, it is incapable of rational choice.
The requisite causal connection between a work-related injury and death is not broken by an act that is the product of work-related mental injury and resulting impaired capacity for rational decision and choice. The impairment in the capacity for rational decision-making and an act of suicide resulting from such impairment are consequences of the mental injury and not separate or intervening causes. If the work results in mental injury and the mental injury results in suicide, the suicide is compensable.
The WCAB found that Hammons’ profound emotional disorder "led to his suicide.” It spoke of "decedent’s extreme depression and resultant suicide.” It said that the work-related and non-work-related problems combined to "produce decedent’s illness and death.” The findings appear to be straightforward applications of the chain-of-causation test, and, again, were in conformity with the applicable rules of law.
C
In Lopucki, supra, pp 235-236, the Court of Appeals adopted a Deziel analysis for suicide cases:
"We require a different approach. Due to the Michigan Supreme Court’s decision in Deziel v Difco Laboratories, Inc, 403 Mich 1; 268 NW2d 1 (1978), the theory of an intervening intermediate cause of the suicide is not a viable theory in Michigan. Such theory assumes the existence of a rational part of the brain which chooses suicide despite the survival instinct and this rational portion of the brain is the 'actual’ cause of the suicide. The Deziel decision eliminated the requirement of showing any 'actual’ causal nexus between the employment and the injury. It is now sufficient if a strictly subjective causal nexus is supplied. If it is factually established that a claimant honestly, though mistakenly, perceived some personal injury incurred during his employment caused his disability, then he is entitled to compensation.”
In neither Lopucki nor the instant case was there a finding that the worker’s mental illness or suicide was caused by his non-work-related problems although he "honestly believed” that his work-related problems were the cause of his mental illness. Since compensation was neither sought nor awarded on the basis of "honest perception” and the WCAB could not have been guided by Lopucki, which was decided after the instant case was decided, we see no reason to remand for further factfinding out of concern that the departures from the chain-of-causation test in Lopucki may have occasioned the award in the instant case.
The citation of Deziel by the WCAB in the instant case appears, in context, to relate to the portion of Deziel recognizing the difficulty in determining "the causal significance of any one factor,” and that nevertheless compensation may be awarded if there is a work-related factor.
IV
In Selk v Detroit Plastic Products (On Resubmission), 419 Mich 32; 348 NW2d 652 (1984), this Court held'that the increase in the interest rate effected by 1981 PA 194 from 5% to 12% per annum is retroactive to the date each weekly payment of workers’ compensation benefits was due if the compensation is paid after January 1, 1982, pursuant to an award of a hearing referee, the WCAB, or a court.
Affirmed, and remanded to the WCAB for the computation of interest.
Williams, C.J., and Kavanagh and Cavanagh, JJ., concurred with Levin, J.
The WCAB said:
"Decedent took a promotional exam in 1972 and was at the top of the list when he was sent to Command Supervisors School in early 1974. It was understood that this training was undergone in anticipation of and preparation for an appointment to the next sergeant vacancy. When the City of Highland Park decided to eliminate several sergeant posts, the Highland Park Police Officers’ Association filed suit. One week before his death, decedent learned that that complaint had been dropped and that his chances for future promotion were considerably reduced.” Hammons v Highland Park Police Dep’t, unpublished opinion of the WCAB, filed April 22, 1981.
The brief of the city recounts the testimony that would support the conclusion that Hammons’ depression and mental problems were attributable to factors other than work:
"Mr. Hammons’ childhood was plagued with family problems. He was raised without the benefit of a father. His father had died six months before his birth. His mother remarried, but her second marriage ended in divorce. Furthermore, decedent and his mother had a strained, distant relationship.
"Perhaps for these reasons, the decedent was very devoted to and 'caught up’ in his own family. He was unhappy with his son John’s irresponsibility. He wanted to move his family from Highland Park because he feared his daughters would begin interracial dating, which he abhorred. The Hammons, however, were financially unable to move. In fact, the Hammons were in constant financial difficulty, as the decedent was apt to live beyond his means.
"In 1968, one of decedent’s daughters, Pammy, died in a tragic auto accident. She was returning to school at lunchtime when an automobile ran a red light. The car, out of control, drove over the curb, knocked over a safety-boy and crossing-lady, and dragged Pammy across the street. The car eventually pinned the girl against a tree. She lived for 5-1/2 hours, but never regained consciousness. Immediately after the accident, the decedent was deeply disturbed. He had to be helped to his room by his fellow police officers and put to bed. His wife called a doctor who sedated Mr. Hammons by means of an injection.
"Decedent was not able to make arrangements for his daughter’s funeral. Mrs. Hammons recalled that Mr. Hammons would lie on the couch with his deceased daughter’s paper-mache, angel-doll and with her Girl Scout uniform over his arm. Two or three days before his daughter’s death, Pammy had asked the decedent if she could play with his transistor radio, but Mr. Hammons did not permit her to do so. After Pammy’s death, Mr. Hammons spoke of his refusal to let her play with the radio a great deal. In fact, he had the radio buried with his child. He also requested that his daughter be buried in her Girl Scout uniform. At the wake, decedent held the angel-doll as if he was transfixed in another place. He continued for some time after the funeral in this manner. He would go for long walks in the rain and disappear for periods of time. He would walk back to the park where he played with his deceased daughter and carry mementos of his daughter with him. Mrs. Hammons requested that the decedent’s fellow officers take away decedent’s firearms because the decedent was unstable and she did not trust him in the house. The decedent’s hunting revolvers and pistols were locked up, pursuant to her instruc tions. Decedent’s partner at work, John Holloway, thought that Mr. Hammons would Tose it’ at this time. He believed that Mr. Hammons’ deep depression would cause him to lose his mental stability and capacity to operate.
"Before his daughter’s death, the deceased was described as an easy-going, happy-go-lucky person. After her death, he nearly had a nervous breakdown and became tense and short-tempered. The decedent had never been under a doctor’s care before the incident, but thereafter began treating [sic] for nervous and emotional problems. Mrs. Hammons recalled that Mr. Hammons completely lost interest in living about this time.
"In addition to this calamity, Mr. Hammons’ marriage deteriorated. After Pammy’s death, Mrs. Hammons had a hysterectomy. Mr. and Mrs. Hammons ceased having sexual relations with one another. By late 1973, it became clear that their personal problems would lead to divorce. The decedent moved into the attic of the marital home. Mrs. Hammons testified that the tension was building in early 1974 to where she was afraid of [sic] her own life. She described the situation as 'like sitting on a powder keg’. At one point, the decedent almost choked his wife to death. The decedent was eventually forced via court order to move from the attic of the marital home. At this time, decedent was losing weight, dyeing his hair, and wearing flashy clothes. The Hammons’ ensuing divorce was long and bitter.
"Following his June 21, 1974 divorce, the decedent became romantically involved with a co-employee, Gloria Strongman, at the hospital where he worked. The decedent was very eager to re-marry after his divorce. He purchased an engagement ring for Ms. Strongman at Christmas time, just days before his death. Ms. Strongman rejected his offer of marriage, however, 1-1/2 days before his death. Richard Grimm, a co-employee of decedent, consoled the decedent by saying he and Ms. Strongman should not get married because they were both divorced and had the same problems.”
The WCAB cited MCL 418.331(1)(b); MSA 17.237(331)(1)(b) and MCL 418.341; MSA 17.237(341).
Benefits were awarded from the date of death and until the further order of the board, not to exceed 500 weeks. See MCL 418.321; MSA 17.237(321).
414 Mich 871 (1982).
MCL 418.301; MSA 17.237(301).
"We hold, as a matter of law, that in cases involving mental (including psychoneurotic or psychotic) injuries, once a plaintiff is found disabled and a personal injury is established, it is sufficient that a strictly subjective causal nexus be utilized by referees and the WCAB to determine compensability. Under a 'strictly subjective causal nexus’ standard, a claimant is entitled to compensation if it is factually established that claimant honestly perceives some personal injury incurred during the ordinary work of his employment 'caused’ his disability. This standard applies where the plaintiff alleges a disability resulting from either a physical or mental stimulus and honestly, even though mistakenly, believes that he is disabled due to that work-related injury and ’ therefore cannot resume his normal employment. See Anno: Workmen’s compensation: neurasthenia as compensable, 44 ALR 500.” Deziel v Difco Laboratories, Inc (After Remand), supra, p 26.
See fn 1.
Trombley v Coldwater Training School, supra, pp 662-663, citing Carter v General Motors Corp, 361 Mich 577; 106 NW2d 105 (1960).
See Deziel v Difco Laboratories, Inc (After Remand), supra. See also IB Larson, Workmen’s Compensation Law, § 42.20 et seq.
Professor Larson has written:
"Although it is sometimes said that the suicide must stem from a 'compensable physical injury,’ this statement is unduly restrictive. The correct statement is that the suicide must be the result of some injury arising out of and in the course of employment. In other words, it should not be necessary to show that the first injury resulted in the kind of disability that would in itself have technically entitled the claimant to compensation. For example, in Wilder v Russell Library Company, [107 Conn 56; 139 A 644; 56 ALR 455 (1927)], a librarian suffered a physical and nervous breakdown due to overwork and worry and committed suicide when her condition developed into insanity. Although there was a history of predisposition to mental trouble in her family, compensation was awarded on the ground that the suicide was the direct result of the employment. Similarly, in Trombley v State of Michigan, an employee of the Coldwater State Home and Training School had been questioned by a legislative committee which was investigating the death of a patient at the Home. He heard on the evening news broadcast that the committee was preparing to continue the investigation. Up to that time, the employee 'had felt aggrieved’ by the accusations made against him, but merely 'threw up his hands and went to bed’ on hearing the latest news. The next day he slipped out of the house, drove a mile to a secluded spot, and shot himself with a rifle. Compensation was affirmed by an equally divided court.” Larson, Workmen’s Compensation Law, Desk Edition, § 36.40.
See fn 2.
"Any objective causation standard, whether it be in the form of the 'but-for’ or the 'aggravation-acceleration’ rule, will be of little assistance in deciding whether to award compensation in cases involving psychoneuroses or psychoses. Perhaps some direct causal nexus with an employment event can be established in a few cases. But in most cases a constellation of psychodynamic factors is involved; therefore, it is almost impossible to weigh the causal significance of any one factor. Indeed, it has been posited that the utilization of an objective legal causal analysis in these psychoses cases would be analogous to entering a maze without a map. Psychoneuroses and psychoses take on so many shades and forms as to show no logical pattern vis-á-vis any notion of objective legal causation.” Deziel v Difco Laboratories, Inc (After Remand), supra, p 28.
"The compensation act contemplates no such absurdity. Its requirements are simple: The claimant must show a reasonable relation of cause and effect between work and injury. Other possible or probable causes of the injury do not have to be excluded beyond doubt.” Kepsel v McCready & Sons, supra, pp 343-344.
"Preexisting disease or infirmity of the employee does not disqualify a claim under the 'arising out of employment’ requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. This is sometimes expressed by saying that the employer takes the employee as he finds him.
"As to 'accelerating’ the disease, common examples include various kinds of heart failure due to exertion, excitement, or other employment conditions which precipitate the failure of a heart that is already weak, but which, but for these conditions, might have gone on functioning reasonably well for an indefinite time; the 'lighting up’ of tuberculosis because of injury, exposure, and the like, which might have remained latent and inactive but for the employment; and acute appendicitis precipitated by the exertions or impacts of the employment, since the appendix, although diseased, might have remained unruptured for an indeterminate time but for the employment.
" 'Aggravating’ the disease is exemplified by cancer cases in which the malignant growth is ruptured or spread by occupational exertions, or in which its development is hastened by strains, impact, inhalations, or accidents in the course of employment. The preexisting condition may be any kind of weakness. It may be a syphilitic condition, as in a case in which injuries from an automobile accident combined with a syphilitic condition to produce insanity. It may be mental or nervous in character, as in the case of a workman who had recovered from a paranoid schizophrenia, but suffered a recurrence as a result of a fall. It may be a back condition, weakened limb, as in the case of a claimant whose arm had previously been broken and had healed poorly, so that it could be injured by a mishap that probably would not have hurt a normal arm.” 1 Larson, Workmen’s Compensation Law, § 12.20.
See 1A Larson, Workmen’s Compensation Law, § 36.00; Anno: Suicide as Compensable Under Workmen’s Compensation Act, 15 ALR3d 616, 629.
See 1A Larson, Workmen’s Compensation Law, § 36.30.
"In January of this year Mr. Justice Schaefer, of the Illinois supreme court, had occasion to analyze the Sponatski rule in his opinion in Harper v Industrial Commission, [24 111 2d 103; 180 NE2d 480 (1962)]. His analysis considers the major objections to Sponatski expressed by legal scholars and other courts, objections which I believe are valid and require our rejection of its rule:
" 'Although the test formulated in the Sponatski Case has been followed in a number of other jurisdictions (see cases collected 143 ALR 1227 and 56 ALR 459), it has certain rather clear deficiencies. It seems to assume that a man’s capacity to choose is a constant, unvariable factor, unaffected by whatever stresses may be brought to bear against it, and so it minimizes to the point of exclusion the possibility that capacity to choose may itself be impaired as the result of a compensable injury. If any degree of choice or volition remains, recovery is to be barred "even though choice is dominated and ruled by a disordered mind,” — which by hypothesis means a mind that has become disordered as the result of the injury for which compensation is sought. To us this underlying assumption of the Sponatski test is dubious, both from a medical and from a legal point of view. Neither the record before us, the briefs of the parties, nor the opinions that have adopted the Sponatski test suggest that its basic assumption rests upon responsible medical opinion. And so far as the law is concerned, it regularly recognizes, in a multitude of situations subsumed under the concept of duress, that freedom of choice may be so impaired by extrinsic pressures, physical and mental, as to deprive conduct of its normal legal significance.
" 'The Sponatski test has been vigorously criticized for its failure to recognize the role which pain or despair may play in breaking down a rational mental process. (1 Larson, Workmen’s Compensation [1952], § 36.30; Horovitz, Injury and Death under Workmen’s Compensation Laws [1944], pp 134-136; 8 UCLA L Rev 673 [1961]; 45 Iowa L Rev 669 [1960]; cflUof Chicago L Rev 105 [1933].) It has been pointed out that the rule that there can be no recovery unless the suicide occurs "through an uncontrollable impulse or in a delirium of frenzy without conscious volition to produce death,” practically excludes from compensation those cases not marked by some violent or eccentric method of self-destruction. (1 Larson, Workmen’s Compensation Law [1952], § 36.20.) And it has been stated that it is erroneous as a matter of law to characterize a suicide as an intervening cause when it is attributable to a psychosis that results from a compensable injury. "The slashing of the wrist was an intervening act, but not an intervening cause. An intervening cause is one occurring entirely independent of a prior cause. When a first cause produces a second cause that produces a result, the first cause is the cause of that result.” Fowler, J., dissenting in Barber v Industrial Commission and Burrell Engineering Co, 241 Wis 462, 467; 6 NW2d 199; 143 ALR 1222 (1942).’ ” Trombley v Coldwater State Home & Training School, supra, pp 669-671.
See fn 16.
See Anno: Suicide as Compensable Under Workmen’s Compensation Act, 15 ALR3d 616, 622; Note, Workmen’s compensation — Suicide compensable where casual [sic] connection to injury, 31 U of Cin L R 187 (1962).
In Trombley, supra, p 664, Justice Souris wrote:
"In those States, like Michigan, which have statutory provisions [CL 1948, § 412.2] barring recovery of compensation if injury or death results from intentional or wilful action by the decedent employee, the decedent’s mental derangement need only be found [in states adopting the chain of causation test] to have so impaired his reasoning faculties that his act of suicide was not voluntary in the sense that term is used to describe rational choice of alternatives.”
CL 1948, § 412.2, is now, without change in language, MCL 418.305; MSA 17.237(305), which reads as follows:
"If the employee is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the provisions of this act.”
We agree with Justice Souris. The term "misconduct” suggests culpability or wrongdoing. The actions of a person whose mind is impaired by a profound emotional disorder and extreme depression are not the product of a free will, of unfettered choice, and hence are not voluntary or intentional in the sense that the term "intentional and wilful misconduct” is used in the act.
Professor Larson has written:
"The modern rule is that violation of a statute is not wilful misconduct per se. There must be the intentional doing of something of a quasi-criminal nature, either with knowledge that it is likely to result in serious injury, or with a wanton disregard of probable consequences.
"A striking illustration of the relation between the statutory offense and the compensation defense is afforded by the decision in Day v Gold Star Dairy [307 Mich 383; 12 NW2d 25 (1943)], in which the claimant, having been involved in a collision resulting from his attempt to pass a truck at the crest of a' hill on a wet day, was convicted of reckless driving by a jury. Nevertheless, his award of compensation was affirmed under the Michigan statute making wilful and intentional misconduct a defense. The court held that the compensation department was entitled to determine for itself whether the claimant’s conduct was merely a high degree of negligence as distinguished from wilful and intentional misconduct.” 1A Larson, Workmen’s Compensation Law, § 35.30.
See first paragraph of part I for quotation from the WCAB opinion citing Deziel, and fn 12 for quotation from Deziel. See also fns 13 and 14 and accompanying text.
MCL 418.801; MSA 17.237(801).
The decision of the WCAB in the instant case is dated April 22, 1981. The order provided for the payment of interest at the rate of 5% per annum from the date each payment was due until paid. The Court of Appeals denied leave to appeal on August 31, 1981. This Court granted leave to appeal on August 10,1982. (See fn 5.)
Justice Kavanagh and I dissented and would have held (i) that weekly payments that were due and payable before January 1, 1982, bear interest at 5% until December 31, 1981, and thereafter bear interest at 12% until paid and (ii) that weekly payments that became or become due and payable on or after January 1, 1982, bear interest at 12% until paid. Selk v Detroit Plastic Products (On Resubmission), 419 Mich 32, 37; 348 NW2d 652 (1984). | [
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Kavanagh, J.
Defendant pleaded guilty to second-degree murder. MCL 750.317; MSA 28.549. Pursuant to a plea bargain, a charge of first-degree murder was dismissed. MCL 750.316; MSA 28.548. He was sentenced to life imprisonment.
The Court of Appeals considered and rejected asserted errors touching the plea-taking procedure and that Court’s ruling thereon is not challenged here. Rather defendant here argues the effect of "Proposal B” on the "lifer law” and claims that failure of the trial court to make certain that defendant was correctly informed thereon prevented an understanding plea as required by GCR 1963, 785.7.
We do not usually treat errors not asserted in the Court of Appeals. We address this question, however, because we are concerned with its implication in this and many other cases and confusion about it has such impact on our plea-taking procedure as to warrant our speaking to it at this time.
MCL 791.234(4); MSA 28.2304(4), popularly known as the "lifer law,” provides in pertinent part:
"A prisoner under sentence for life or for a term of years, other than prisoners sentenced for life for murder in the first degree and prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substance offense, who has served 10 calendar years of the sentence, is subject to the jurisdiction of the parole board and may be released on parole by the parole board ....”
Proposal B, an initiatory provision adopted by the voters in 1978 became MCL 791.233b; MSA 28.2303(3) and provided in relevant part:
"A person convicted and sentenced for the commission of any of the following crimes shall not be eligible for parole until the person has served the minimum term imposed by the court which minimum term shall not be diminished by allowances for good time, special good time, or special parole.”
Among the crimes listed requiring service of a minimum term before parole is second-degree murder.
The prosecutor argues that Proposal B, despite its express provision that the legislation has application to "the minimum term imposed by the court,” must be read as applying to a life sentence. This is so, he maintains, because the minimum term of a life sentence is the natural life of the defendant. He relies on the authority of the opinion of the Attorney General, OAG 1979-1980, No 5583, pp 438, 441-442 (October 16, 1979), for this view, and its acceptance by the Court of Appeals in People v Cohens, 111 Mich App 788, 795; 314 NW2d 756 (1981).
We disagree.
The difference between a life sentence and an indeterminate sentence having a minimum and maximum term has been recognized by this Court since our decision in People v Vitali, 156 Mich 370; 120 NW 1003 (1909). We observed in Vitali that if a life sentence is imposed there can be no minimum term.
Accordingly, when a statute authorizes the imposition of a sentence of "life or any term of years” it allows the imposition of a fixed sentence —life—or an indeterminate sentence — any number of years. We observed in People v Blythe, 417 Mich 430, 434-435; 339 NW2d 399 (1983), that the Legislature viewed the phrase "life or any term of years” as descriptive of the maximum sentence only. The sentence concepts "life” and "any term of years” are mutually exclusive and a sentencing judge may (in the appropriate case) opt for either but not both.
We hold that Proposal B applies only to indeterminate sentences. Its express provisions are binding on the parole board, and the board may not release on parole, before the expiration of the minimum term fixed by the sentencing judge, any person given an indeterminate sentence for the crimes specified after the proposal’s effective date. It has no application to a fixed or life sentence.
The judgment of the Court of Appeals is affirmed.
Williams, C.J., and Levin, Brickley, and Cavanagh, JJ., concurred with Kavanagh, J. | [
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Boyle, J.
We granted leave to consider the constitutionality of the rape-shield statute, MCL 750.520j; MSA 28.788(10), as applied in these two cases. We hold that application of the statute in the cases at bar did not violate defendant’s procedural or substantive rights. We affirm the judgment of the Court of Appeals in Paquette and reverse in Hackett.
I
Defendants in both cases challenge the trial court’s application of the rape-shield statute, MCL 750.520j(1); MSA 28.788(10)(1), in excluding evidence of the victim’s prior sexual conduct with persons other than the defendant as violative of their Sixth Amendment right of confrontation and cross-examination.
The same constitutional attack against this statute was recently addressed by this Court in People v Arenda, 416 Mich 1; 330 NW2d 814 (1982), where we upheld the validity of the statute on its face and as applied under the facts of that case. In determining the statute’s facial constitutionality, the majority stated:
"The right to confront and cross-examine is not without limits. It does not include a right to cross-examine on irrelevant issues. It may bow to accommodate other legitimate interests in the criminal trial process, see Mancusi [v Stubbs, 408 US 204; 92 S Ct 2308; 33 L Ed 2d 293 (1972)], and other social interests, see United States v Nixon, 418 US 683; 94 S Ct 3090; 41 L Ed 2d 1039 (1974).
"The rape-shield law, with certain specific exceptions, was designed to exclude evidence of the victim’s sexual conduct with persons other than defendant. Although such evidence was admissible at common law in rela tion to certain issues, this practice has repeatedly been drawn into question. The courts, with increasing frequency, have recognized the minimal relevance of this evidence, see Anno: Modern status of admissibility, in statutory rape prosecution, of complainant’s prior sexual acts or general reputation for unchastity, 90 ALR3d 1300, and Anno: Modern status of admissibility, in forcible rape prosecution, of complainant’s prior sexual acts, 94 ALR3d 257.
"The prohibitions contained in the rape-shield law represent a legislative determination that, in most cases, such evidence is irrelevant. This determination does not lack a rational basis and is not unreasonable. In fact, it is consistent with the results reached by the judiciary in resolving this issue, see State ex rel Pope v Mohave Superior Court, 113 Ariz 22; 545 P2d 946 (1976).
"The prohibitions in the law are also a reflection of the legislative determination that inquiries into sex histories, even when minimally relevant, carry a danger of unfairly prejudicing and misleading the jury. Avoidance of these dangers is a legitimate interest in the criminal trial process, see MRE 403. The prohibition indirectly furthers the same interests by removing unnecessary deterrents to the reporting and prosecution of crimes.
"At the same time, the prohibitions protect legitimate expectations of privacy. Although this interest may not be as compelling as those mentioned above, it is entitled to consideration, see Branzburg v Hayes, 408 US 665; 92 S Ct 2646; 33 L Ed 2d 626 (1972).
"The interests protected and furthered by the rape-shield law are significant ones. Given the minimal relevance of such evidence in most cases, the prohibitions do not deny or significantly diminish defendant’s right of confrontation.” (Emphasis in original.) People v Arenda, supra, pp 8-11.
In Arenda, defendant sought to admit evidence of the eight-year-old victim’s possible sexual conduct with others to explain the victim’s ability to describe the sexual acts that allegedly occurred and to dispel any inference that this ability resulted from experiences with the defendant. Balancing the potential prejudicial nature of this evidence, in view of the legislative purposes behind the rape-shield law, against the minimal probative value of the evidence, the Court found that the application of the rape-shield law in precluding such evidence did not infringe on defendant’s right of confrontation. The Court noted that other means were available by which the defendant could cross-examine the minor victim as to his ability to describe the alleged conduct. The Court, however, left for future case-by-case determinations the question whether under different sets of facts the rape-shield statute’s prohibitions would be unconstitutional as applied. Id., p 13. The proper method by which such a determination would be made by the courts was not addressed by the majority opinion.
II
We are here faced with the task of determining the constitutional application of the rape-shield statute in two different factual circumstances. Before deciding this question, however, we find it necessary to further explicate our decision in Arenda.
The statute and its parallel provisions in the Michigan Rules of Evidence, MRE 404(a)(3), constitute a policy determination, that sexual conduct or reputation as evidence of character and for impeachment, while perhaps logically relevant, is not legally relevant. McCormick, Evidence (1st ed), § 155. The protection of inquiry into privileged communication, the preclusion of hearsay, and the limitation of prior bad act evidence, MRE 404(b), are familiar examples of instances in which the admissibility of probative evidence is restricted because of a competing and superior policy. Indeed, the preclusion of specific acts of conduct, reputation or opinion as circumstantial evidence that the person whose character is sought to be shown engaged in the same conduct at the time in question was not received at common law because of its potential for prejudice, time consumption, and distraction of the factfinder from the issues. McCormick, p 325. Stated otherwise, neither the Sixth Amendment Confrontation Clause, nor due process, confers on a defendant an unlimited right to admit all relevant evidence or cross-examine on any subject. See Dutton v Evans, 400 US 74; 91 S Ct 210; 27 L Ed 2d 213 (1970). Cf. People v Hayes, 421 Mich 271; 364 NW2d 635 (1984).
It is equally clear that while the extent of cross-examination is within the discretion of the trial court there is a dimension of the Confrontation Clause that guarantees to defendant a reasonable opportunity to test the truth of a witness’ testimony. Alford v United States, 282 US 687; 51 S Ct 218; 75 L Ed 624 (1931).
By enacting a general exclusionary rule, the Legislature recognized that in the vast majority of cases, evidence of a rape victim’s prior sexual conduct with others, and sexual reputation, when offered to prove that the conduct at issue was consensual or for general impeachment is inadmissible. People v Arenda, supra, 416 Mich 10. The first purpose is simply a variation of character evidence as circumstantial evidence of conduct. The second is a collateral matter bearing only on general credibility as to which it has been held that cross-examination may be denied, United States v Cardillo, 316 F2d 606 (CA 2, 1963). The fact that the Legislature has determined that evidence of sexual conduct is not admissible as character evidence to prove consensual conduct or for general impeachment purposes is not however a declaration that evidence of sexual conduct is never admissible. We recognize that in certain limited situations, such evidence may not only be relevant, but its admission may be required to preserve a defendant’s constitutional right to confrontation. For example, where the defendant proffers evidence of a complainant’s prior sexual conduct for the narrow purpose of showing the complaining witness’ bias, this would almost always be material and should be admitted. Commonwealth v Joyce, 382 Mass 222; 415 NE2d 181, 185-186 (1981); see also Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974). Moreover in certain circumstances, evidence of a complainant’s sexual conduct may also be probative of a complainant’s ulterior motive for making a false charge. State v Jalo, 27 Or App 845; 557 P2d 1359 (1976); State v Howard, 121 NH 53; 426 A2d 457 (1981). Additionally, the defendant should be permitted to show that the complainant has made false accusations of rape in the past. People v Werner, 221 Mich 123, 127; 190 NW 652 (1922); People v Mikula, 84 Mich App 108, 115-116; 269 NW2d 195 (1978); State ex rel Pope v Mohave Superior Court, supra, 113 Ariz 29.
The determination of admissibility is entrusted to the sound discretion of the trial court. In exercising its discretion, the trial court should be mindful of the significant legislative purposes underlying the rape-shield statute and should always favor exclusion of evidence of a complainant’s sexual conduct where its exclusion would not unconstitutionally abridge the defendant’s right to confrontation.
Ill
The procedure to be employed by the trial court in evaluating the admissibility of evidence of the complainant’s prior sexual conduct is found in the rape-shield statute’s provision for in camera hearings. The relevant provision reads as follows:
"(2) If the defendant proposes to offer evidence described in subsection (l)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (l)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).” MCL 750.520j(2); MSA 28.788(10)(2). (Emphasis added.)
Whether we construe this provision to permit the extension of in camera hearings to include consideration of evidence outside the scope of subsection (1) where a defendant’s confrontation right has been implicated, or whether we ground the broadened scope of such hearings on this Court’s constitutional authority to establish rules of practice and procedure, we conclude that the hearing procedure will best accomplish the required balancing. A hearing held outside the presence of the jury to determine admissibility promotes the state’s interests in protecting the privacy rights of the alleged rape victim while at the same time safeguards the defendant’s right to a fair trial. Furthermore, this procedure establishes a record of the evidence for appellate review of the trial court’s ruling.
The defendant is obligated initially to make an offer of proof as to the proposed evidence and to demonstrate its relevance to the purpose for which it is sought to be admitted. Unless there is a sufficient showing of relevancy in the defendant’s offer of proof, the trial court will deny the motion. If there is a sufficient offer of proof as to a defendant’s constitutional right to confrontation, as distinct simply from use of sexual conduct as evidence of character or for impeachment, the trial court shall order an in camera evidentiary hearing to determine the admissibility of such evidence in light of the constitutional inquiry previously stated. At this hearing, the trial court has, as always, the responsibility to restrict the scope of cross-examination to prevent questions which would harass, annoy, or humiliate sexual assault victims and to guard against mere fishing expedi tions. Alford v United States, supra, 282 US 694. Moreover, the trial court continues to possess the discretionary power to exclude relevant evidence offered for any purpose where its probative value is substantially outweighed by the risks of unfair prejudice, confusion of issues, or misleading the jury. See MRE 403; People v DerMartzex, 390 Mich 410, 415; 213 NW2d 97 (1973); People v Oliphant, 399 Mich 472, 489-490; 250 NW2d 433 (1976). We again emphasize that in ruling on the admissibility of the proffered evidence, the trial court should rule against the admission of evidence of a complainant’s prior sexual conduct with third persons unless that ruling would unduly infringe on the defendant’s constitutional right to confrontation.
IV
In the two cases at bar, there was no in camera evidentiary hearing conducted. However, because the record established on the defendant’s offer of proof in each case is adequate for purposes of appellate review, we need not remand these cases for such a hearing to be held. We therefore examine each case separately under the constitutional standard set forth herein.
A. Hackett
Prior to trial, defendant made an offer of proof to admit evidence of complainant’s reputation for homosexuality for the dual purposes of impeaching his credibility and as bearing on the defense of consent. In addition, defendant sought to introduce specific instances of the complainant’s prior homosexual conduct with prisoners of the same race as defendant to circumvent the inference that it would be improbable that a white male prisoner would consent to sodomy by a black male prisoner.
On appeal, defendant argues, in addition to the purposes advanced at the trial level, that the proffered evidence of complainant’s homosexuality was relevant to show his bias and motive to get back at the defendant. Because these purposes were not specified in defendant’s offer of proof, they are not properly preserved for our review. MRE 103(a)(2); People v Arenda, supra, 416 Mich 14.
As to the proffered evidence of the complainant’s reputation for homosexual unchastity to impeach his credibility as a witness, we observe generally that there is no logical nexus between a complainant’s reputation for unchastity, whether it involves heterosexual or homosexual activity, and the character trait for truthfulness or untruthfulness. See People v Williams, 416 Mich 25, 45; 330 NW2d 823 (1982). Defendant argues that this evidence was necessary to rebut the complainant’s trial testimony that he knew nothing about anal sex and his preliminary examination testimony where he denied being a homosexual. We note that the complainant at trial did not deny being a homosexual and the problem of rebuttal on this point never materialized as anticipated by defendant.
Defendant also claims that evidence of the complainant’s reputation for, or specific acts of, homosexual conduct, with black male prisoners in particular, should have been admitted as necessary to establish his defense of consent. Defendant argues that such evidence would have made it more probable for the jury to believe that the complainant, a white male prisoner, consented to or solicited the act of sodomy with the defendant, a black male prisoner.
In People v Williams, supra, this Court found that proffered evidence on the sexual assault vie tim’s alleged status as a prostitute was irrelevant to the issues of consent and credibility. 416 Mich 40-46. Like prostitution, the fact that a person is a homosexual, standing alone, has little or no logical relevance between the excluded prior sexual acts evidence and the issues of consent or credibility. Thus, to the extent defendant sought to introduce evidence as to complainant’s reputation as a homosexual or to specific acts of homosexuality for the purpose of bolstering his defense of consent, we find such evidence is irrelevant and the trial court properly excluded it.
However, a closer question is presented where such evidence was sought to dispel the assumption that most jurors would believe such an act, especially given the interracial element, is not likely to occur voluntarily. Nevertheless, we do not believe defendant was denied his constitutional right to confrontation since he had a reasonable opportunity to introduce evidence which would have permitted a discriminating appraisal of complainant’s possible consent. Evidence of a specific instance of alleged homosexual conduct between complainant and a black male inmate occurring three days before the incident in question was brought out at trial as well as evidence of two stains of seminal fluid which may have been from more than one person. The defendant was not denied his right to confrontation since he was given the opportunity, even though limited in fashion, to expose to the jury the complainant’s past homosexual encounter with a prisoner of the same race as defendant as tending to show his consent in this instance.
B. Paquette
At trial, defendant sought to introduce evidence concerning complainant’s reputation for unchastity, a specific instance of complainant’s prior sexual conduct in which she allegedly met a man in a bar and left with him for consensual sexual relations in a motel, and, finally, evidence of a statement made by complainant that she was not getting enough sexual satisfaction from her husband for the sole purpose to show consent.
We find defendant’s offer of proof is inadequate to have even met the minimal threshold of relevancy, a prerequisite to invoking the constitutional standard. As we stated in Arenda, supra, the Sixth Amendment right to confrontation requires only that the defendant be permitted to introduce relevant and admissible evidence. 416 Mich 8. Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401.
As a general rule, evidence of a complainant’s prior sexual unchastity, in the form of reputation evidence or a specific instance of conduct, has little or no relevancy to the issue of complainant’s consent with defendant as to the incident in question. The rationale for this rule was cogently expressed in a recent federal court decision involving a right to confrontation challenge to rule 412 of the Federal Rules of Evidence, the federal counterpart to Michigan’s rape-shield statute, as follows:
"The constitutional justification for excluding reputation and opinion evidence rests on a dual premise. First, an accused is not constitutionally entitled to present irrelevant evidence. Second, reputation and opinion concerning a victim’s past sexual behavior are not relevant indicators of the likelihood of her consent to a specific sexual act or of her veracity. Privacy of Rape Victims: Hearings on H R. 14666 and other Bills Before the Subcomm. on Criminal Justice of the Committee on the Judiciary, 94th Cong, 2d Sess 14-15 (1976). Indeed, even before Congress enacted rule 412, the leading federal case on the subject, United States v Kasto, 584 F2d 268, 271-272 (CA 8, 1978), stated that in the absence of extraordinary circumstances:
" 'evidence of a rape victim’s unchastity, whether in the form of testimony concerning her general reputation or direct or cross-examination testimony concerning specific acts with persons other than the defendant, is ordinarily insufficiently probative either of her general credibility as a witness or of her consent to intercourse with the defendant on the particular occasion ... to outweigh its highly prejudicial effect.’
"State legislatures and courts have generally reached the same conclusion. We are not prepared to state that extraordinary circumstances will never justify admission of such evidence to preserve a defendant’s constitutional rights. The record of the rule 412 hearing in this case, however, discloses no circumstances for deeming that the rule’s exclusion of the evidence classified in items 1-5 is unconstitutional.” Doe v United States, 666 F2d 43, 47-48 (CA 4, 1981).
Therefore, absent extraordinary circumstances, a complainant’s reputation for unchastity or specific instances of complainant’s past sexual conduct with third persons is ordinarily irrelevant and inadmissible to show consent.
In the present case, there are no extraordinary circumstances disclosed in the record to take this case out of the general rule of inadmissibility. The fact that complainant may have consented to sexual activity at some time in the past with a man other than the defendant, whom she met in a bar and accompanied to a motel, is not sufficiently similar to the facts at hand to be relevant to the issue of consent. Here, the simultaneous sexual acts between complainant and two strangers, one of whom was the defendant, occurred in the cab of a truck after the strangers had picked up the complainant on the road near her car which had run out of gas. Moreover, complainant’s alleged reputation for engaging in consensual sexual relations in the past, does not tend to prove that she did so with defendant at the time in question.
We find that the trial court’s exclusion of this proffered evidence of complainant’s prior sexual conduct with persons other than the defendant, either as reputation or specific instances of conduct, did not deprive defendant of his right to confrontation because this right does not extend to cross-examination on irrelevant matters.
The remaining proffered evidence concerned the complainant’s statement of her sexual dissatisfaction at home due to the physical condition of her husband. We agree with Justice Kavanagh’s observation that this evidence does not fall within the terms of the rape-shield statute since technically it is not evidence of prior sexual conduct. The Court of Appeals correctly found no abuse of the trial court’s discretion in excluding this evidence on the ground of irrelevancy because the complainant was separated from her husband at the time of the offense in question.
V
Having examined each of the two cases before us in light of the constitutional standard set forth herein, we conclude that the application of the rape-shield statute by the trial court under the particular facts in these cases did not violate the defendants’ right to confrontation.
Accordingly, in Hackett, we reverse the decision of the Court of Appeals and reinstate the defendant’s conviction; whereas, in Paquette, we affirm the decision of the Court of Appeals.
Williams, C.J., and Ryan, Brickley, and Cavanagh, JJ., concurred with Boyle, J.
Kavanagh, J.
I
Defendant Charles R. Hackett was convicted of assault with intent to commit sexual penetration, MCL 750.520g(1); MSA 28.788(7)(1). The offense was alleged to have occurred in a barracks bathroom while the defendant and complainant were inmates at Camp Pugsley, a facility operated by the Michigan Department of Corrections. Ricky R. Vanhohenstein testified that at 2 a.m. on August 28, 1979, the defendant sat on the edge of complainant’s bunk, pressed a pair of scissors against his neck and ordered him to the bathroom. In a toilet stall, testified the complainant, the defendant compelled complainant to submit to an attempt at anal intercourse. The theory of the defense was that the incident never happened or that, if it did, complainant solicited and consented to the act. The defense argued that defendant was being set up by the complainant in retaliation over an incident involving a picture. Defendant did not testify.
Prior to trial, defense counsel moved to admit evidence of the complainant’s reputation for homosexual unchastity and of specific instances of the complainant’s sexual conduct at Camp Pugsley. Defense counsel offered to prove that the complainant, a white person, was a homosexual who enjoyed associations of a sexual nature with black inmates in particular and that he maintained close physical contact with inmates by touching and embracing them. Counsel also offered to prove that complainant traded homosexual favors within the prison for benefits such as marijuana. Such evidence was said to be relevant to the probability that complainant would consent to or solicit sexual contact with defendant. The evidence was also needed, argued defense counsel, to circumvent an assumption that it would be improbable that a white male prisoner would consent to sodomy by a black male prisoner. Lastly, defense counsel argued that evidence of complainant’s reputation for homosexual unchastity was admissible for the purpose of impeaching his credibility because of his anticipated testimony that he had not previously engaged in sexual contact with other inmates.
In the second case before the Court, James Paquette and another individual were convicted of criminal sexual conduct in the first-degree, MCL 750.520b; MSA 28.788(2). The transaction giving rise to the charges occurred when the defendant and his friend picked up the complainant on a road near her car, which had run out of gas. The complainant, defendant, and his friend all testified to sexual acts occurring in the cab of a truck. The complainant, however, testified that she was compelled to submit to the sexual acts by physical force and threats of personal injury. The defendant and his friend testified that the complainant initiated the sexual acts and consented.
During trial, the issue was raised whether defense counsel could introduce testimony that the complainant had a reputation for unchastity. He also sought to introduce testimony of what he said was a circumstance similar to the one for which defendant was on trial, that shortly before the incident alleged, the complainant had met a man in a bar and left with him to enjoy sexual relations that night in a motel. Lastly, counsel wished to introduce testimony that the complainant had made a statement that she had received insufficient sexual attention from her husband. The proffered evidence was argued to be relevant to the probability of the complainant’s consent to the sexual acts.
II
In both cases, defense counsels’ proffered evidence was excluded by the trial courts under different interpretations of MCL 750.520j(1); MSA 28.788(10)(1). The statute, which is part of the criminal sexual conduct act, 1974 PA 266, MCL 750.520a et seq.; MSA 28.788(1) et seq., provides:
"Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(a) Evidence of the victim’s past sexual conduct with the actor.
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.”
The trial court excluded the evidence of reputation and of specific instances of prior conduct in Hackett apparently on the grounds of the proscription of MCL 750.520j(1); MSA 28.788(10)(1). The applicability and constitutionality of MCL 750.520j(1); MSA 28.788(10)(1) and MRE 404(a)(3) were argued by the prosecution and the defense at a hearing on the motion, but the trial court did not state the authority of its ruling. In an unpublished opinion per curiam, the Court of Appeals concluded that exclusion of evidence of the complainant’s reputation for unchastity denied the defendant a fair trial. The Court said that evidence should have been admitted on the facts of this case because of the defense theory that defendant was set up and because of one witness’ testimony that the defendant was propositioned by the complainant, who denied other homosexual activity. We granted leave to appeal. 417 Mich 1043 (1983).
The trial court in Paquette read the statute as affording discretion to admit or exclude the proffered evidence once he determined whether it was more probative than prejudicial. At a hearing outside the presence of the jury, during trial, the court concluded that the proffered evidence was irrelevant to the issue of consent and prejudicial to the prosecution’s case. The Court of Appeals affirmed, People v Paquette, 114 Mich App 773; 319 NW2d 390 (1982), holding irrelevant as insufficiently similar to the allegations evidence of the complainant’s meeting a man in a bar. Evidence of complainant’s alleged reputation for unchastity, the Court concluded, had low probative value, outweighed by the state’s interest in encouraging the prosecution of rapists and protecting victims from humiliation. Further, evidence of the statement attributed to complainant that she received insufficient sexual attention from her husband was irrelevant because she was separated from her husband at the time the offense was said to have been committed. We granted leave to appeal. 417 Mich 1041 (1983).
Ill
On appeal, the validity of MCL 750.520j(1); MSA 28.788(10)(1) is challenged on constitutional grounds. The defendants maintain they offered to introduce relevant evidence, which was prohibited by the statute, in contravention of their rights to confrontation under US Const, Am VI, and Const 1963, art 1, § 20. The prosecutors argue that the evidence excluded by the statute is always logically or legally irrelevant, and therefore does not contravene constitutional rights.
As a rule of evidence, the statute has been permitted life under MRE 101:
"A statutory rule of evidence not in conflict with these rules or other rules adopted by the Supreme Court is effective until superseded by rule or decision of the Supreme Court.”
The function of establishing the rules of practice and procedure for the courts of this state is committed by the constitution, Const 1963, art 6, § 5, exclusively to the Supreme Court. See also MCL 600.223(2); MSA 27A.223(2). It is "a function with which the legislature may not meddle or interfere save as the Court may acquiesce and adopt for retention at judicial will.” Perin v Peuler, 373 Mich 531, 541; 130 NW2d 4 (1964).
In view of our constitutional duty to govern the practice and procedure of the courts of Michigan, we have concluded that MCL 750.520j(1); MSA 28.788(10)(1) must give way to a more realistic accommodation of the rights of defendants in criminal cases. Accordingly, we hold that MRE 404(a)(3) supersedes MCL 750.520j(1); MSA 28.788(10)(1). We believe this will accomplish the salutary goals of the statute without sacrificing the right to present relevant evidence.
MCL 750.520j(1); MSA 28.788(10X1) absolutely prohibits the admission of evidence of sexual conduct between the victim and any person other than the defendant except to show the source or origin of semen, pregnancy, or disease. The statute applies only to offenses tried under MCL 750.520b-750.520g; MSA 28.788(2)-28.788(7).
Ordinarily, all relevant evidence is admissible. See MRE 402. Evidence is relevant if it has any tendency to make the existence of a fact in issue to the action more or less probable than it would be without the evidence. See MRE 401. Relevant evidence may nonetheless be excluded from trial "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” MRE 403.
In support of MCL 750.520j(1); MSA 28.788(10)(1), the plaintiffs contend that the evidence excluded by the statute is usually irrelevant. As we noted in People v Arenda, 416 Mich 1, 10; 330 NW2d 814 (1982), the statute represents a "legislative determination that, in most cases, such evidence is irrelevant.” (Emphasis added.)
There are two problems with this contention which militate against our continued acquiescence in this statute. First, even if in most cases the excluded evidence is irrelevant, the statute excludes it in all cases. Such categorical exclusion is not warranted simply because the excluded evidence is relevant in only a few cases.
Secondly, the relevancy of whole classes of evidence cannot be determined a priori, at least without knowing the purpose for which such evidence is offered. "The relevancy of evidence depends on the issue to be tried.” White v Bailey, 10 Mich 155 (1862). Not until the issues are framed at trial can it be known whether evidence of prior sexual conduct is relevant, as the Legislature recognized in the statute under consideration. Evidence of prior sexual conduct to show the source or origin of semen, pregnancy, or disease is admissible under the statute, but only if it "is material to a fact at issue in the case” and is more probative than prejudicial.
However, say plaintiffs, even in those cases where the excluded evidence is logically relevant, it is always outweighed by its prejudicial effect, and for that reason is inadmissible.
The plaintiffs’ argument reflects a misunderstanding of the inquiry. Relevant evidence may be excluded if its probative value is "substantially outweighed” by its prejudicial effect. MRE 403. Since the relevancy of evidence cannot be determined until the issues are known, the probative value of the evidence a fortiori cannot be known until then. Accordingly, it cannot be said categorically that the prejudicial effect of prior sexual conduct evidence always substantially outweighs its probative value.
Moreover, plaintiffs misperceive the nature of the prejudice needed to overwhelm the probative value of evidence. Plaintiffs assert that the admission of evidence of prior sexual conduct deters victims from prosecuting. While that is a significant problem of social policy, it is not the sort of prejudice which weighs against the probative value of evidence.
Since the enactment of MCL 750.520j(1); MSA 28.788(10)(1), the Court has adopted MRE 404(a)(3), which provides:
"Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
* * *
"In a prosecution for criminal sexual conduct, evidence of the victim’s past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.”
Under this rule, evidence of a person’s prior consensual sexual conduct is not admissible for the purpose of proving that the person consented to sexual conduct on the occasion of the offense charged. Such evidence is admissible, however, if it involved the defendant or if offered for the purpose of showing the source or origin of semen, pregnancy, or disease.
MRE 404(a)(3) is a more sophisticated approach to the question of the admissibility of prior sexual conduct evidence. Unlike the statute, MRE 404(a)(3) focuses on the purpose for which such evidence is offered. The statute simply excludes all evidence of prior sexual conduct with third persons unless offered to show the source or origin of semen, pregnancy, or disease. Moreover, MRE 404(a)(3) has the incidental benefit of correcting the discredited use to which evidence of prior sexual conduct has been most frequently put, which is what aroused the Legislature originally to enact MCL 750.520j(1); MSA 28.788(10)(1).
A rule of evidence which excludes a whole category of evidence on the grounds that some of it may be irrelevant is one which we, as the overseers of the rules of evidence in our courts, would not adopt and cannot accept.
IV
In Hackett, the defendant offered to admit evidence of the complainant’s prior sexual conduct, in the form of reputation and specific instances of conduct, for several purposes. From the record, it appears that the trial court felt bound by the flat proscription of MCL 750.520j(1); MSA 28.788(10)(1).
Under these circumstances, we are compelled to remand the case for a hearing before the trial court. The court must exercise discretion to determine whether the evidence offered by defendant is admissible under MRE 404(a)(3). If it is, defendant’s conviction must be set aside, his sentence must be vacated, and a new trial must be had.
In Paquette, defense counsel proffered evidence of the complainant’s alleged reputation for unchastity and of a specific instance of prior sexual conduct. Rather than interpreting the statute as absolutely prohibiting the admission of such evidence, the trial court exercised discretion to determine that the evidence was more prejudicial than probative. We are not persuaded that the court abused its discretion. Proffered evidence of a statement attributed to complainant that she received insufficient sexual attention from her husband was viewed in the same light and excluded. Although evidence of the statement was not evidence of prior sexual conduct within the terms of MCL 750.520j(1); MSA 28.788(10)(1), we are not convinced that the trial court abused its discretion in excluding the evidence.
The judgment of the Court of Appeals in Hackett should be reversed, and the case should be remanded for further proceedings consistent with this opinion.
The judgment of the Court of Appeals in Paquette should be affirmed.
Implicit in our holding in Arenda that the rape-shield statute was constitutional on its face was the presumption that the Legislature intended in enacting this statute that it not conflict with constitutional requirements. See People v McQuillan, 392 Mich 511, 536; 221 NW2d 569 (1974). Prior to enactment of the statute, Davis v Alaska, 415 US 308; 94 S a 1105; 39 L Ed 2d 347 (1974), and Alford v United States, supra, had both held that a defendant must have some opportunity to show bias on the part of a prosecution witness and a long line of Michigan authority in accord with that of other state courts, held that interest or bias of a witness in a criminal case is material and may be proved, People v Field, 290 Mich 173; 287 NW 422 (1939); Wigmore, Evidence (2d ed), § 1368. Given this background, we consider it unlikely that either the Legislature or the drafters of the Michigan Rules of Evidence intended to "scuttle entirely” the evidentiary availability of cross-examination for bias, Luce v United States, 469 US —; 105 S Ct 460; 83 L Ed 2d 443 (1984).
Other states with analogous rape-shield statutes have similarly interpreted their respective statutes to provide for an in camera evidentiary hearing to afford the defendant an opportunity to offer evidence of a complainant’s prior sexual conduct with third persons where it is constitutionally required. State v Howard, supra, 121 NH 59; State v McCoy, 274 SC 70, 71; 261 SE2d 159 (1979); State v Jalo, supra, 27 Or App 857 (Fort, J., concurring in part and dissenting in part).
Const 1963, art 6, § 5.
In United States v Kasto, 584 F2d 268, 271, fn 2 (CA 8, 1978), the court gave the following examples of circumstances which would enhance the probative value of this evidence:
"Such circumstances might include where the evidence is explanative of a physical fact which is in evidence at trial, such as the presence of semen, pregnancy, or the victim’s physical condition indicating intercourse, or where the evidence tends to establish bias, prejudice, or an ulterior motive surrounding the charge of rape. Sexual history might also be relevant where the victim has engaged in a prior pattern of behavior clearly similar to the conduct immediately in issue.” (Citations omitted.) | [
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Boyle, J.
In this case we are called upon to decide whether the "one year back” limit on recovery of no-fault insurance benefits contained in MCL 500.3145(1); MSA 24.13145(1) should be tolled by the filing of a workers’ compensation claim for the same injuries, where the same carrier insures both liabilities. The circuit court found tolling unwarranted under the facts of this case, while the Court of Appeals, adhering to one of two conflicting lines of authority in that Court, rejected a reading of the no-fault statute that would even allow such a tolling. We affirm on the basis that, assuming arguendo the availability of tolling in the no-fault context, the notice of injury here given was insufficient to toll the no-fault one-year-back rule.
I
Plaintiff John Welton was injured in a work-related motor vehicle accident on December 4, 1978. As a result, he was out of work from January 23, 1979, to July 28, 1980, during which time he received workers’ compensation benefits from defendant Carriers Insurance Company pursuant to a claim filed on February 6, 1979. Upon his return to work, plaintiff discovered that he was entitled to no-fault benefits for the same accident and made a claim for such benefits on August 4, 1980. Carriers voluntarily paid him no-fault bene fits for the one-year period immediately preceding the date of claim (August 5, 1979, through August 4, 1980), but refused to pay further benefits for the prior period (i.e., December 4, 1978, through August 4, 1979). Plaintiff commenced this action to recover those further benefits.
Finding that the one-year-back rule contained in MCL 500.3145(1); MSA 24.13145(1) precluded recovery for losses incurred prior to one year before plaintiff’s claim, Ingham Circuit Judge James R. Giddings granted Carriers’ motion for accelerated judgment. Although he recognized authority in Richards v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), lv den 406 Mich 862 (1970), for tolling the "one year back” rule during the pendency of a claim before its denial by the insurer, Judge Giddings determined that no "request for payment” such as to trigger a Richards tolling in this case was made until August 4, 1980. Accordingly, plaintiff’s no-fault recovery could not extend to losses incurred more than one year prior to the August 4, 1980 claim. The Court of Appeals summarily affirmed, with a majority of the panel rejecting Richards in favor of other Court of Appeals opinions reading the plain language of the one-year-back rule as precluding tolling under any circumstances.
We granted leave to appeal to consider whether the filing of plaintiff’s workers’ compensation claim operated to toll the one-year-back rule so as to permit no-fault recovery for plaintiff’s losses incurred prior to August 5, 1979.
II
Plaintiff’s argument requires that we both ac cept the Richards tolling principle and find its requirements satisfied in the instant case. Because we find that the requirements for tolling are not satisfied in this case, we need not reach the question whether Richards tolling is permitted under the statute.
MCL 500.3145(1); MSA 24.13145(1) contains two limitations on time of suit and one limitation on period of recovery:
(1) An action for personal protection insurance (PPI) benefits must be commenced not later than one year after the date of accident, unless the insured gives written notice of injury or the insurer previously paid PPI benefits for the injury.
(2) If notice has been given or payment has been made, the action may be commenced at any time within one year after the most recent loss was incurred.
(3) Recovery is limited to losses incurred during the one year preceding commencement of the action.
In this case there is no question as to (1) or (2): Carriers concedes that plaintiff’s workers’ compensation claim constituted timely "notice of injury” so as to excuse the commencement of suit (on January 2, 1981) later than one year after the accident (December 4, 1978), and the action was commenced within one year of plaintiff’s most recent loss. The tolling issue relates solely to the limit on recovery set forth in (3), referred to as the one-year-back rule. Restated, the issue is whether that one-year cap can be "tolled,” and thereby extended back in time, by reason of the circumstances of this case.
In Richards v American Fellowship Mutual Ins Co, supra, the plaintiff was injured on April 13, 1974, notified his no-fault insurer (the defendant) of the injury on May 9, 1974, and submitted his hospital bill to the insurer on June 18, 1974. The insurer eventually denied the claim on June 10, 1975, and plaintiff commenced suit on June 23, 1975. The defendant insurer attempted to avoid liability by arguing that the June 18, 1974 hospital bill submission predated by more than one year the June 23, 1975 commencement of action and hence precluded both the bringing of suit (under [2] above) and the recovery of the over-one-year-old hospital expense (under [3] above).
The Court of Appeals, finding that the defendant’s proposed result "would run counter to the Legislature’s intent to provide the insured with prompt and adequate compensation,” 84 Mich App 634, held that the one-year limitation period was tolled from the date plaintiff submitted his hospital bill (June 18, 1974) to the date the insurer formally denied liability (June 10, 1975). The effect was to increase the one-year-back period by the amount of time the insurer spent "sitting” on plaintiff’s claim, thereby permitting recovery for the hospital expenses incurred prior to one year before suit.
Assuming, arguendo, that Richards tolling is permissible under the statute, plaintiff’s entitlement to a tolling of the one-year-back rule depends on whether we find a triggering event sufficient to have started the tolling. Plaintiff argues that since Carriers received "notice of injury” by way of plaintiff’s February 1979 workers’ compensation filing, tolling began at the time of that filing. Thus, plaintiff would interpret the "notice of loss” in Richards (i.e., the hospital bill) to be equivalent to "notice of injury.”
The logic of the choice of which date triggers a tolling of the one-year-back rule was aptly summarized by Judge Giddings:
"Richards sought to encourage insurers to promptly assess their liability and notify the insured of their decision. This cannot occur unless a claim for a specific amount of benefits has been submitted to the insurer. Once submitted, the claim can be promptly investigated and a decision reached. Filing of a notice of injury merely informs the insurer that a claim is outstanding. It does not provide the insurer with a basis on which to evaluate the claim and assess potential liability.”
We find this analysis persuasive. While a rule which protects insureds from delays attributable to their insurers is salutary, it also must be remembered that tolling represents a departure from the legislatively prescribed one-year-back cap on no-fault recoveries. Thus, any tolling of the statutory period would properly be tailored to prevent the former type of abuse while preserving the legislative scheme to the fullest possible extent.
Tolling the statute when the insured submits a claim for specific benefits would not appear to detract from the policies underlying the one-year limitation on recovery. By submitting a timely and specific claim, the insured serves the interest in preventing stale claims by allowing the insurer to assess its liability while the information supporting the claim is relatively fresh. A prompt denial of the claim would barely affect the running of the limitation period, while a lengthy investigation would simply "freeze” the situation until the claim is eventually denied. In effect, the insured would be charged with the time spent reducing his losses to a claim for specific benefits plus the time spent deciding whether to sue after the claim is denied.
We conclude that a general notice of injury of the type here given is insufficient to trigger tolling.
Notice of injury simply informs the insurer of "the name and address of the claimant,” "the name of the person injured and the time, place and nature of his injury.” MCL 500.3145(1); MSA 24.13145(1). Until a specific claim is made, an insurer has no way of knowing what expenses have been incurred, whether those expenses are covered losses and, indeed, whether the insured will file a claim at all. It is therefore illogical to expect the insurer to formally "deny” an as yet unperfected claim. Under the proposed rule, however, an insurer that fails to deny such a "claim” would be subject to liability for any and all of the insured’s losses indefinitely, regardless of whether the insurer even knew they were being incurred.
As much as we sympathize with the plight of automobile accident victims in dealing with a significant — and sometimes catastrophic — disruption of their lives, we cannot approve of a rule so contrary to the language of the statute and the policy of repose implicit therein. We therefore conclude that, assuming the validity of the Rich ards rule, tolling would not begin until a claim for specific benefits is submitted to the insurer.
Ill
In the instant case, plaintiff was injured on December 4, 1978, and filed for workers’ compensation benefits on February 6, 1979. Carriers insured plaintiff’s employer for both workers’ compensa tion and automobile no-fault liabilities, and has conceded the sufficiency of plaintiffs workers’ compensation filing as "notice of injury” to toll the no-fault limitation of action ([1] and [2] in our earlier analysis, see Part II), thereby excusing the commencement of suit later than one year after the injury. Carriers does not concede, however, that the workers’ compensation filing was sufficient under Richards to trigger a tolling of the no-fault one-year-back rule ([3] in our earlier analysis, see Part II).
Under our analysis, plaintiffs February 1979 workers’ compensation filing would not have tolled the one-year-back rule applicable to plaintiffs no-fault claim. At the time of that filing, plaintiff was not seeking no-fault benefits, nor was it clear under then-existing law that plaintiff was even entitled to recover those benefits in addition to workers’ compensation. To expect Carriers to have denied its no-fault liability in response to plaintiffs workers’ compensation claim in order to prevent a tolling of the one-year-back rule, would not be reasonable. Wolar v State Farm Mutual Automobile Ins Co, 111 Mich App 152; 314 NW2d 460 (1981).
Accordingly, we find that plaintiff did not claim no-fault benefits until after his return to work in August 1980. The one-year-back period could not have been tolled until that time. Recognizing its liability for no-fault benefits in excess of already paid workers’ compensation benefits, Carriers paid over no-fault benefits for the year immediately preceding the date of claim. Without the benefit of tolling under the circumstances of this case, plaintiff is entitled to no greater recovery.
The judgments below are affirmed.
Kavanagh, Ryan, Brickley, and Cavanagh, JJ., concurred with Boyle, J.
Levin, J., concurred in the result.
Levin, J.
(separate opinion). Under the circumstance that Mathis v Interstate Motor Freight System, 408 Mich 164; 289 NW2d 708 (1980), holding that a worker injured in an automobile accident may recover no-fault benefits to the extent that the no-fault benefits exceed workers’ compensation benefits, was not decided until 15 months after John Welton was injured, Carriers Insurance Company, who had insured Welton’s employer both for no-fault and workers’ compensation liability, may have been justified in paying Welton only the workers’ compensation benefits.
Now that Mathis has been decided, it is questionable whether a self-insured employer or an insurer providing coverage for both exposures would be justified in paying only workers’ compensation benefits on the basis that the injured worker sought only workers’ compensation benefits, at least where, as generally will be the case, the employer or insurer will know whether the claim arises out of an automobile accident.
The opinion of the Court discusses the opinion of the Court of Appeals in Richards v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), and states that were this Court to adopt the Richards approach and to hold that the time for commencing an action on a claim is tolled during the period that the insured does not act on it and until it is denied, such a holding would not aid Welton because he did not file a specific claim. The Court reasons that "[u]ntil a specific claim is made, an insurer has no way of knowing what expenses have been incurred, whether those expenses are covered losses and, indeed, whether the insured [sic] will ñle a claim at all. ” (Emphasis supplied.)
Where a worker is injured in an automobile accident, the no-fault insurer is not subject to liability for "expenses” incurred by the injured worker; medical and hospital expenses are required to be paid by the workers’ compensation insurer or a self-insured employer. Thus, in such a case, the insurer generally has no need to know "what expenses have been incurred, whether those expenses are covered losses.” Also, in such a case, the insurer does not need to know "whether the insured [sic] will file a claim at all”; the only reason why an injured worker who has filed a claim for workers’ compensation benefits would not at the same time file a claim for the additional amount due him as no-fault benefits would be ignorance of his entitlement thereto or of the procedure to be followed in seeking the additional money that the insurer owes him.
A workers’ compensation insurer also providing the employer with no-fault coverage knows, now that Mathis has been decided, that it is under a legal obligation to pay the additional amount to the injured worker as no-fault benefits and, having processed the workers’ compensation claim, cannot assert it does not have all the relevant information. The insurer almost always knows when a work-related injury occurs whether it arose out of an automobile accident. It knows the name of the worker, his address, i.e., where to send a check. It also knows how to compute the check; it knows how much the worker is earning per week and, because it paid the workers’ compensation benefits, how much was paid therefor. Welton cannot properly be denied recovery on the ground that the insurer did not have the requisite information.
Williams, C.J., concurred with Levin, J.
Judge Burns dissented, finding that the Richards tolling principle governed the instant case.
Although the opinion does not clearly state that the tolling applied equally to both the one-year limitation of action and the one-year-back rule, the effect of the affirmance in Richards was to preserve the lower court judgment awarding the amount represented by the hospital bill. Applying the tolling to both the limitation period and the period of recovery accords with common sense, since the only reason for tolling the limitation provision to get plaintiff into court is to allow recovery for that earlier expense.
We recognize that under the no-fault act, benefits are overdue if not paid within thirty days after a claim has been submitted to the insurer. MCL 500.3142(2); MSA 24.13142(2). Of course, the Richards rule would not prevent an insured from then immediately commencing suit. As a practical matter, however, it appears unlikely that insureds will commence suit immediately because of the expense involved in bringing an action and the very real possibility that the claim will be paid without the necessity of legal action. We note that the Richards rule would have the additional effect of dissuading the bringing of such actions until absolutely necessary, i.e., until the insurer formally denies the claim or has so long failed to respond to the insured’s requests that the prospect of payment is dim.
In our earlier decisions relating to fire insurance policies, we held that the running of the applicable limitation period was tolled as of the date of "notice of loss,” roughly analogous to "notice of injury” in the no-fault context. In re Certiñed Question, Ford Motor Co v Lumbermens Mutual Casualty Co, 413 Mich 22; 319 NW2d 320 (1982); The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976). While the parties have not briefed those authorities, we note that our determination today — tolling as of date of claim rather than date of notice — is justified by the peculiar nature of the statutory no-fault limitation provision and therefore is not inconsistent with those decisions.
First, the fire insurance limitation provision operates as an absolute bar to suits not brought within one year of discovery (or inception) of the loss. Absent a tolling rule, the fact that either an insured has promptly notified the insurer of the loss or the insurer has already partially paid the claim would have no effect on that bar. With no-fault, the statute has a built-in "tolling” permitting later suit once notice is given or partial payment been made. Thus, the consequences of the one-year cutoff, and the corresponding need for relief by tolling as of the date notice is given, is more drastic in the case of fire insurance actions than with no-fault.
Second, the specified procedure for claim and recovery of fire insurance benefits includes greater built-in delays, shortening the insured’s already limited time to sue, than does the no-fault law. Following a covered fire loss, the insured generally has 60 to 90 days to file proof of loss, after which the insurer has 60 days to pay or settle the claim. Additional delays may arise when the insurer does not promptly submit proof of loss forms or promptly "accept” the proof of loss once submitted. See Tom Thomas, 396 Mich 592-593. The no-fault law simply provides that payment of a claim is overdue if not paid within 30 days after proof of loss is received by the insurer. MCL 500.3142(2); MSA 24.13142(2). Accordingly, the one-year period in which a fire insurance plaintiff may sue is more substantially curtailed by the recovery mechanism than is the no-fault limitation period, further warranting an earlier tolling date.
Finally, the fact that the Legislature has already provided a tolling provision for commencing a no-fault action, triggered by "notice of injury,” suggests both that notice of injury was intended to have no greater effect and that there is less justification for this Court to interfere with the statutory scheme.
This Court had not decided that simultaneous recoveries of both workers’ compensation and no-fault benefits were permissible until March 20, 1980, Mathis v Interstate Motor Freight System, 408 Mich 164; 289 NW2d 708 (1980), over fifteen months after plaintiff in this case was injured. Thus, until Mathis was decided, Carriers could reasonably have refused to pay a no-fault claim (had one been submitted) on the ground that plaintiff was already receiving workers’ compensation benefits.
We do not intend to foreclose the possibility of a single claim triggering both workers’ compensation and no-fault liabilities under circumstances not before us today, and we therefore do not address ourselves to the legitimate concerns expressed in Justice Levin’s opinion. A different result might be reached on grounds of estoppel, for example, where an employee requests "whatever benefits” the employee is entitled to from an employer and the employer misrepresents or conceals the availability of certain benefits. See, eg., Robinson v Associated Truck Lines, Inc, 135 Mich App 571; 355 NW2d 282 (1984) (fraudulent concealment not borne out by pleadings or affidavits).
Cf. Girlish v Acme Precision Products, Inc, 404 Mich 371: 273 NW2d 62 (1978).
The reasoning of the opinion of the Court, we agree, would justify denial of a later claim for replacement services. MCL 500.3107: MSA 24.13107. | [
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Pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, the suspension ordered by the Attorney Discipline Board is reduced to 120 days, the Grievance Administrator having conceded that the increase in suspension was not justified under the circumstances of the case. | [
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Fellows, C. J.
George Gunst recovered judgment in the sum of $1,500 against William Davis in the Macomb county circuit for assault and battery. Execution was issued and returned unsatisfied June 1, 1921. On June 14th a body execution was issued returnable June 30th. Defendant, was taken into custody and July 25th instituted habeas corpus proceedings to secure his release, his claim being that the execution was void because the return day was less than 20 days, contrary to the provisions of the statute (3 Comp. Laws 1915, § 12816).. Plaintiff’s counsel then moved to amend the return day, setting up that the error in the return day was due to mistake and was intended to be July 30th. The matters weré heard together and the trial judge reached the conclusion that the provisions of the statute as to the return day were mandatory, that he had no power to grant the amendment, and that the process was therefore defective in matter of substance required by law. tie entered an order denying the motion to amend and discharged the defendant. This order is now before us on writ of certiorari.
We intimated in Jensen v. Oceana Circuit Judge, 194 Mich. 405, that it was the better practice to move to quash in the court which issued the writ where it was sought to attack the levy. But in the instant case one order was made involving both matters and the parties have fully discussed all questions without raising any objection to the propriety of the remedy; we shall proceed to dispose of the questions on the merits.
The crucial questions are whether the requirement of the statute that “executions shall be made returnable not less than twenty nor more than ninety days from the date thereof” is mandatory, and executions not conforming to this provision are a nullity, or whether the court has the power to amend an execution so that it will conform to this provision of the statute, it not having so conformed when issued— whether the execution is void or voidable only. Counsel agree that the precise question has not been presented to this court. First National Bank v. Dwight, 83 Mich. 189, is relied upon most strongly by defendant’s counsel as applicable by analogy. In that case a creditor’s bill had been filed. The execution which had preceded it was returnable less than 20 days from its issue, and it was held that the bill could not be maintained. Complainant had not there exhausted his remedy at law and it was held that the defendant could not be harassed by the proceedings unless the execution had been in the hands of the sheriff the statutory period. It was not held that the execution was a nullity or that it could not be amended, but it was held that complainant had not perfected its right to maintain a creditor’s bill.
In Jenness v. Lapeer Circuit Judge, 42 Mich. 469, an execution had been issued after the death of the plaintiff without reviving the suit. This court fully considered the question of whether the execution and sale were void or voidable only and pointed out that voidable proceedings may be saved by amendment while void ones may not be, and it was held that the defect was but an irregularity which might be cured by an order nunc pro tunc. In Arnold v. Nye, 23 Mich. 286, it was held that the failure to attach the seal to the execution did not render it void and that the irregularity could be cured by amendment. In Dewey v. Dewey, 151 Mich. 586, the execution had been issued before the decree was enrolled, but it was held that the defect might be cured by a nunc pro tune order, and this although the statute (1 Comp. Laws 1897, § 468) provided that “no execution shall be issued on any final decree until the same shall have been enrolled as hereinbefore provided.” In Shepard v. Schrutt, 163 Mich. 485, the sheriff during the hearing of a chancery case on a bill filed in aid of execution was permitted to attach to the execution a statement of his proceedings thereunder; and in Forsythe v. Washtenaw Circuit Judge, 180 Mich. 633 (L. R. A. 1915A, 706), the sheriff was permitted to indorse the date he received the execution although the statute unequivocally made it his duty to make the indorsement “on receipt” of the execution (3 Comp. Laws 1915, § 12820).
These cases are not directly in point but they may be helpful by analogy as indicating that certain statutory requirements having to do with executions are directory only. We are not persuaded that the cases dealing with the provisions for short summons in justice’s court are controlling. Justices’ courts are courts of limited jurisdiction while we are here dealing with the action of a court of general jurisdiction. While we have been unable to find that this court has directly passed on the question here involved, other courts have had it before them and the text-writers have given the question their attention. In Ruling Case Law it is stated (10 R. C. L. p. 1241):
“At the present day, the power to amend executions so as to correct clerical misprisions is universally conceded, and frequently invoked. Indeed, it is very difficult to prescribe limits to this salutary power possessed by the courts, of permitting amendments in their process, whether mesne or final. Conformably to this liberal attitude of the courts towards amendments generally, instances may be cited of amendments of executions with reference to errors in matters of form, in directions to the officer, in describing the date of the judgment, or of its docketing, in designating the return day, in the clause of attestation, or generally, in matters relating to the court, place or time of return.” * * *
Mr. Freeman finds no difficulty in determining that the great weight of authority supports the power to amend. He says (1 Freeman on Executions [3d Ed.], §44):
“The period within which the execution is to be returned differs in the different States, being regulated by local statutes. At common law, the time for the return was designated in the writ, and this practice still obtains in most, but not in all, of the States. It has sometimes been held that an error in the return day, or, in other words, the designation in the writ of a return day at a time different from that designated by law, was fatal. But this view is entirely without the support of reason, and is now opposed by a decisive majority of the reported adjudications upon this subject. In fact, there is no mere matter of form from which a departure could be of less detriment to the parties. The provision for a return day is beneficial mainly, if not solely, to the plaintiff, because it fixes a time when he may expect to obtain the fruits of his judgment, by compelling the sheriff to have the writ satisfied, if satisfaction can be had. The defendant has no interest in the return day, for the writ, as soon as sued out, may and ought to be levied, whether it be returnable in ten days or in six months.”
In Goode’s Adm’r v. Miller, 78 Ky. 235, it was said by the court:
“By the rule of the common law, executions were either issued or made returnable in the term time, but by our statutes they were formerly returnable in not less than thirty nor more than ninety days, and now seventy days is the limit between the teste and return of the writ. The rule of the common law. was regarded as directory only, and such has been the ruling under the various statutes on the subject.”
The following authorities will be found to sustain the excerpts above quoted: Mitchell v. Corbin, 91 Ala. 599 (8 South. 810); People, ex rel. Davis, v. Montgomery Common Pleas, 18 Wend. (N. Y.) 633; Milburn v. State, 11 Mo. 188 (47 Am. Dec. 148); Cherry v. Woolard, 23 N. C. 438; Williams v. Hogeboom, 22 Wend. (N. Y.) 648; Denn v. Lecony, 1 N. J. Law, 111; Van Deusen v. Brower, 6 Cow. (N. Y.) 50; Jackson v. Bowling, 10 Ark. 578; Stephens v. Dennison, 1 Ore. 19; Perkins & Co. v. Woodfolk, 67 Tenn. 480; Shoemaker v. Knorr, 1 Dall. (Pa.) 197; Saunders v. Smith, 3 Ga. 121; Reubel v. Preston, 5 East. 291; Atkinson v. Newton, 2 Bos. & P. 336; Herman on Executions, §§ 66, 67; 1 Abbott, Cyc. Mich. Practice, pp. 707, 708. The only cases militating against those just cited which we have been able to discover in the time at our disposal are Furtade v. Miller, Barnes, 213; the holdings of the Vermont court of which Fifield v. Richardson, 34 Vt. 410, is typical, and Harris v. West, 25 Miss. 156. This Mississippi case, however, must be regarded as modified at least by the holding of that court in Brown v. Thomas, 26 Miss. 335.
We are persuaded that the statement of Mr. Freeman above quoted is supported by reason and authority and that it was within the power of the trial court to grant the motion to amend the return day of the writ. From this it follows that the order made must be vacated and the case remanded to the circuit court for Macomb county for such further proceedings as may be had not inconsistent with this opinion. Plaintiff in certiorari will recover costs of this court.
Wiest, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Clark, J.
On January 29, 1920, plaintiff, a laborer in a foundry, was assisting in pouring molten iron from a bull ladle, which when filled weighed about 800 pounds. From opposite sides of the ladle a bar four or five feet in length projected, which at each end was divided into two handles between which a man stood when pouring, the ladle being supported by a bench. Plaintiff and a fellow workman had poured part of the metal,—
“A. When she slipped and gave me that wrench.
“Q. What slipped?
“A. Why, that bull ladle.
“Q. What did it slip in?
"A. On the benches it was setting on. It got caught and I went to pull on it and it came back. She slipped and wrenched me. * * *
“A. I don’t know where it slipped, but it slipped. When I was turning it, when I wanted to come back on it, it slipped.
“Q. It slipped as you were coming back?
“A. When she went down, when I took her down.
“Q. On which side?
“A. On the left side. Then when I started her back, she didn’t come and I gave a strain om it and she slipped and she came back with force and just twisted me that way and I held on with one hand and pushed dewn with the other.
“Q. Which hand did you push down with?
“A. I pushed down with this hand. If I had let it go back it would have burned the other men; I held with this hand and pushed with the other; it wrenched me when' it slipped. * * *
“A. When I came back and I went to pour on the right hand side and when I put my felt on the right hand side it hurt me and I said I am getting sick to my stomach. * * * In the meantime Burt took the ladle and I started away and that was the last I knew until I came to in the hospital.”
Another witness said that plaintiff received a jerk— a hard jerk. Plaintiff testified that when he was so jerked or wrenched he felt a pain in the region of the appenidix, and that he had suffered no similar pain before and he also claims some persistence of the pain in his side following the accident.
The employer called a physician whose opinion was that plaintiff had been overcome by the heat of the foundry room, and he was treated accordingly at the hospital where he'remained nine days. The physician testified that while at the hospital plaintiff suffered a mild attack of influenza, but this plaintiff’s testimony tends to deny.
On February 13, 1920, another physician found plaintiff suffering from appendicitis for which he was treated and. later operated May 4, 1920. There was testimony that the appendicitis was chronic, there being hard and extensive adhesions, and that plaintiff might have been so afflicted at the time of the accident. Connecting the appendicitis with what befell plaintiff at the foundry, physicians testified:
“I would say with the accident he would be more apt to have it. Receiving an injury of that kind would lower resistance and would be a factor. * * *
“Yes, sir. I think it would be impossible in a case of the kind to eliminate the blow if he got a strain. * * *
“I am not speaking about this man particularly, this particular case, but cases in general. If a man received an injury such as a strain or blow on the side I think it would be a predisposing factor. * * '*
“Just so far as is due to infection this accident may have been a factor in lowering the resistance so that this infection would become active. I can’t say that the appendicitis was caused by the accident and I cannot say it was not. I think it was probably a predisposing cause. * * *
“Q. This man had chronic appendicitis?
“A. I would say so, yes, sir.
“Q. That might have extended over a period of years on January 29, 1920?
“A. It might have extended beyond that point, but in eliciting his history very carefully he repeatedly told me he had no trouble with the appendix previous to the injury.
“Q. And on that history you base your opinion that the injury caused the appendicitis?
“A. Considering his statement as we always consider the statement of a patient, it would be reasonable to conclude that was it.”
There was medical testimony that appendicitis might be caused by influenza, but the board found, in effect, that plaintiff had not suffered an attack of influenza, as claimed.
There was report of an accident, and after notice and application for adjustment of claim, plaintiff sent the board the following letter:
“Dowagiac, Mich.,
“June 8, 1920.
“Mr. Fred H. Johnson, Sec’y.,
“Industrial Accident Fund,
“Lansing, Michigan.
“My dear Mr. Johnson: I have this date sent you a telegram as follows:
‘Cancel hearing on my claim against Rudy Furnace Company and State Accident Fund —they haye settled — letter follows.’
“In explanation I want to advise that the writer does not consider himself able to attend the hearing on account of his own condition, and the State Accident Fund tlarough the Rudy Furnace Company have settled the case in a manner satisfactory to me.
‘T thank you for your courtesy in this matter and beg to remain,
“Yours very truly,
“Peter Fritz.”
It seems that the substance of the agreement between the parties was that the bills of the hospital and the physicians be paid, and it seems they were not paid. Approval by the board of such agreement was neither sought nor given.
Ignoring the letter, the board ordered arbitration, at which plaintiff appeared and said he did not want a hearing. The hearing was adjourned indefinitely by the deputy commissioner in charge. The board again ordered arbitration at which plaintiff appeared and testified in support of his claim for compensation. The arbitration committee consisted of a deputy commissioner and two other members. Defendant was represented by counsel. As counsel for plaintiff, deputy commissioner Derham appeared, who, when questioned as to his authority to appear, said: “I appear in behalf of the State of Michigan.” Objection being made to his so appearing, he said:
“The respondent in this case and the State accident fund have by every possible means availed themselves of every technicality in this case. For that reason it has been necessary for the industrial accident board to send a representative to Dowagiac to see to it that this applicant’s interest is looked after.”
Defendant’s motion to dismiss on the ground that the claim of plaintiff had been withdrawn was overruled. Plaintiff had award of $12.60 per week, and that the total of such weekly payments then due was $604.80, and for medical and hospital bills under the act, which award on review was affirmed by the board, it being found that what befell plaintiff at the foundry as stated was an accidental personal injury arising out of and in the course of his employment, and that the disability resulted from the injury. Defendants bring certiorari.
That it was the right, if not the duty, of the board to order arbitration regardless of the alleged agreement in settlement or waiver, or release of compensation, is settled by the opinion of this court in Dettloff v. Hammond, Standish & Co., 195 Mich. 117.
The service by the deputy commissioner as an attorney for plaintiff at the arbitration is indefensible, beyond the scope of his statutory duties and powers, and is without right of compensation by the State. The duties of the board are quasi-j udicial. The judicial mind opposes one’s being both judge and advocate in a cause. Such practice brings an administration of the law into disfavor. But the board on review had no power to vacate the arbitration proceedings, to order another arbitration, or to grant a rehearing on arbitration. See Jones v. St. Joseph Iron Works, 212 Mich. 174, where it was said:
“When the arbitrators make their award either for or against the plaintiff, that award fixes the rights of the parties, and these rights are, in the absence of fraud, irrevocably fixed unless the board on review, hearing the case de novo, upon the testimony already taken, and such additional testimony as the parties may submit, reaches a different conclusion. In this way, and this way alone, may the award of the arbitrators be set aside.”
The power of this court as expressed by the statute is to review questions of law involved in the final determination of the board and to make such orders in respect to such final determination as justice may require. Section 5465, 2 Comp. Laws 1915. The irregularity in the arbitration is not involved in the final determination of the board, and, therefore, cannot affect the result here.
The board in its findings disregards the testimony of the physician called by the employer as to plaintiff’s being overcome by the heat and finds an, accidental personal injury under the act, from the testimony of the plaintiff and his fellow workman in respect to the wrenching, twisting, and jerking suffered by plaintiff because of the slipping or catching of the ladle, and the pain then suffered by plaintiff in the region of the appendix, and the subsequent history of his ailment. The finding has evidential support and therefore is sustained.
That what befell plaintiff was an accidental personal injury under the act, see: 14 N. C. C. A. p. 527; Schanning v. Standard Castings Co., 203 Mich. 612; Robbins v. Original Gas Engine Co., 191 Mich. 122; Grove v. Michigan Paper Co., 184 Mich. 449.
The finding by which influenza as a cause of the disability was eliminated may not be said to have no evidence to sustain it. Nor can we say that there is no evidence that the subsequent disability and the appendicitis are not attributable to the accident. To do so would ignore certain of the medical testimony upon which; the board based its finding as to the disability. The medical testimony here is distinguishable from that reviewed in Weidner v. Northway Motor & Manfg. Co., 205 Mich. 583, cited by counsel. And that plaintiff’s disability may have resulted from the accidental aggravation of a chronic ailment and that he may have been predisposed because of disease to this form of attack have nothing .to do with the question of whether what befell him is to be regarded as an accident. La Veck v. Parke, Davis & Co., 190 Mich. 604; St. Clair v. Meyer Music House, 211 Mich. 285; 10 N. C. C. A. 756.
The award is affirmed.
Fellows, C. J., and Wiest, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision.
Authorities discussing the question as to what is an accident within the meaning of workmen’s compensation acts, in general, are collated in notes in L. R. A. 1916A, 29, 227; L. R. A. 1917D, 103; L. R. A. 1918F, 867. | [
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Sharpe, J.
May a justice of the peace hear and determine a summary proceeding begun by a circuit court commissioner under section 12182, 3 Comp. Laws 1915, in case such commissioner is absent or disqualified, when the land, recovery of possession of which is sought, lies outside the township in which the justice resides?
The section reads as follows:
“Whenever any process shall have been issued by * * * any circuit court commissioner, and on any day set for the return or hearing thereof, such commissioner shall be absent or otherwise disqualified from acting therein, it shall be lawful for any other circuit court commissioner or other officer having authority to perform the like duty in the same county, to assume jurisdiction thereof and to proceed therein, and to hear, try and determine the same, * * * with like effect in all respects as if the original process had been issued by * * * him.” * * *
The statute authorizing summary proceedings to recover the possession of lands in certain cases (3 Comp. Laws 1915, § 13229 et seq.) provides, in section 13241, that complaint may be made to a circuit court commissioner, or “a justice of the peace, when he shall have jurisdiction under this chapter.” Under section 13231, complaint may be made to a circuit court commissioner “or to a justice of the peace of the city or township where the premises are located.”
The justice would not have had jurisdiction to receive the complaint and issue the summons for the reason that the lands were not located in the township in which he was a justice. But it is insisted that he may in the cases provided for assume jurisdiction and act if the lands are located anywhere in the same county, by reason of the provision that he may act if he has “authority to perform the like duty in the same county.”
This seems to be the first time this question has been raised under this statute. Counsel have not called our attention to, nor have we been able to find, any authority wherein a similar question has been considered. The Constitution provides for the election of four justices in each organized township. (Art. 7, § 15.) Section 16 limits their jurisdiction in civil cases and provides:
“They shall also have such criminal jurisdiction and perform such duties as shall be prescribed by law.”
Their territorial jurisdiction in civil suits brought before them is carefully defined by the statutes. Except in certain specified cases it is confined to litigation in which the parties are residents of the township in which the justice resides or an adjoining township. The jurisdiction of the justice to act under this statute in cases begun before him depends on the lands being located in the township in which he is a justice. We are persuaded that the provision in question does not fairly express an intention to extend that jurisdiction. His authority to perform the “like duty,” that is, to hear and determine the merits of the controversy, the right to the possession of the real estate in question, is confined to lands in the township in which he is justice.
The judgment entered will be set aside and held for naught and the complaint on which it is founded dismissed, with costs to the defendants.
Fellows, C. J., and Wiest, Clark, Bird, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Moore, J.
The plaintiff, the H. J. Martin Company, and the cross-plaintiff, the Hamtramck Lumber & Supply Company, filed mechanics’ liens on October 17, 1919, and November 17, 1919, respectively, the former for $522.37 with interest, and the latter for $405.97 with interest, on the property owned by Michael Trautz and Kathryn Trautz, husband and wife. From a decree in favor of the appellees the case is brought here by the appellants by an appeal.
It is the contention of the defendants that the service of the order establishing the Martin Company lien under this claim was defective, counsel citing Hannah & Lay Mercantile Co. v. Mosser, 105 Mich. 18, and Zilz v. Wilcox, 190 Mich. 486, 492.
Section 14801, 3 Comp. Laws 1915, provides:
“Section 6. Every person filing such statement or account as provided in the preceding section, except those persons contracting or dealing directly with the owner, part owner or lessee of such premises, shall, within ten days after the filing- thereof, serve on the owner, part owner or lessee of such premises, if he can be found within the county, or in case of his absence from the county, on his agent having in charge of such premises within the county wherein the property is situated, a copy of such statement or claim,” etc.
At the outset the appellees insist the case is not properly here because the record shows as follows:
“Plaintiffs herein filed their sworn bill of complaint to foreclose their mechanic’s lien. Defendants filed an unsworn answer. Upon the hearing plaintiffs offered their bill with the answer of defendants in evidence, and they were received as prima fade proof of plaintiffs’ claim.
“Paragraph 6 of plaintiffs’ bill reads as follows:
“‘That thereafter on, to-wit: the 21st day of October, A. D. 1919, your orators caused copies of said statement of account and claim of lien to he personally served upon Michael Trautz and Kathryn Trautz, his wife, the owners of the premises, against which said lien is claimed due, proof of service of which said lien has been properly made.’
“Defendants Michael Trautz and Kathryn Trautz, in their unsworn answer, replied to paragraph 6 of plaintiffs’ bill as follows:
“ 'They admit the allegations contained in paragraph six of the bill of complaint.’
“No question of any kind was ever raised by defendants about the service in this matter until the day of hearing, when Mr. Wade, as attorney for defendants Trautz, began to cross-examine Harry J. Martin in reference to the service he made of the claim of lien.
“Upon the objection by the attorneys for the plaintiffs to any testimony regarding the service of the claim of lien being raised, because of the answer of defendants admitting such service, the attorney for defendants asked leave to amend his answer to show that there was personal service on Mrs. Trautz. No amendment of any kind to defendants’ answer was ever allowed by the court. The only reference to the allowance of the amendment requested is as follows:
“Mr. Wade: Does your honor rule on the amendment?
“The Court: All right. You may proceed. I haven’t passed upon that yet.”
The court proceeded to try the case upon the merits and, after all the testimony was taken, said in part:
“The court will hold that the service was good in the case of the Hamtramck Lumber Company. I will find this, that whether it is a fact that Mrs. Trautz was in or without the county, it is apparent to me that Mr. Smith was given to understand that she was outside of the county, and that he acted in good faith in trying to obtain personal service upon her, and was Jed to believe by the action of Mrs. Trautz and her husband, particularly Mr. Trautz, that she was not within the county, and that she was not — it was impossible for him to obtain personal service, and that he therefore made all the service that was possible under the circumstances. * * *
“In other words Mr. Smith apparently was seeking to obtain service; he knew what was necessary and he went to Mr. Trautz’s home; it was at that hour of the day when Mr. Trautz ordinarily would have been in the dining room eating supper. * * *
“Now it is inconceivable to me how Mr. Smith, acting for the express purpose of making a legal service, could have gone there and stayed without asking where she was, or making some inquiry, or making some effort to find her. According to Mr. Trautz, who, I take it, did not know at that time — didn’t know that personal service was necessary upon Mrs. Trautz, and it would not be so impressed upon his mind as it would be upon Mr. Smith’s. But at any rate, Mr. Smith was there; he put himself to some inconvenience and expense. He had been there several times, and it is inconceivable to me that he would have proceeded indifferently in reference to the presence of Mrs. Trautz, and for that reason I think his statement is correct and I take his version of it.
“In relation to the service in the case of H. J. Martin Company, a copartnership composed of Harry J. Martin and Randall E. Martin, I find that service of a copy of the claim of lien was made upon Michael Trautz upon the premises affected by said lien by Harry J. Martin within the prescribed time, and that at the same time Michael Trautz informed the process server that Kathryn Trautz, his wife, was in a serious physical condition, and that it would be impossible for him to see her, but that he, her husband would take her copy and would accept service for her. The server thereupon gave both copies to Michael Trautz, and while he was still upon the premises and in the hallway of the house thereon, Kathryn Trautz appeared and came down stairs into the presence of her husband and the server. Thereupon Michael Trautz handed to his wife, Kathryn Trautz, in the presence of Harry J. Martin, the copy of the claim of lien, which he accepted for her. I also find that Michael Trautz read to Kathryn Trautz the contents of the claim of lien, and that she was fully informed of its portent. The defendants Michael and Kathryn Trautz now raise objection to this service and say that it was not a personal service upon Kathryn Trautz. * * *
“I think under the circumstances there is such a service as under the law would be considered personal service, there having been duly established the liens for the amounts claimed with interest and taxable costs.”
We quote some of the testimony. Mr. Martin is the witness:
“Q. Did you tell Mr. Trautz what your business was when he got into the house?
“A. Yes.
“Q. Did you tell him that you wished to serve a copy of this lien — claim of lien upon him?
“A. Yes.
“Q. What did Mr. Trautz say?
“A. Mr. Trautz said that his wife was in an exhausted condition — nervous, exhausted condition; that I couldn’t see her to serve the lien papers on her. and he insisted that I couldn’t see her, that she could not be seen; that she was in such a condition that it would be ridiculous to see her; and at that time Mrs. Trautz wanted to know what all was going on, and she called down stairs and came down stairs and the daughter and the aunt came down stairs. * * *
“Q. When Mrs. Trautz came down stairs who had copy of the lien?
“A. Mr. Trautz.
“Q. Did he have both of them?
“A. He had both of them.
“Q. How did it happen that he had both of them?
“A. I insisted upon seeing her, and he wouldn’t allow me to see her and as a gentleman I wouldn’t go upstairs to see the wife and serve it on her, and he insisted upon handingi it to her for me.
“Q. Did you consent to that?
“A. I did.
“Q. So that when Mrs. Trautz came down Mr. Trautz had both copies?
“A. Yes.
“Q. You said that they — that she wanted to know what was going on?
“A. Yes.
“Q. Did you explain to her?
“A. No, I didn’t; Mr. Trautz—
“Q. Did anyone explain to her?
“A. Mr. Trautz told her it was about that building, and that—
“Q. What did he say it was about?
“A. I don’t remember his statements, but it was to the effect that I was serving papers for a lien. He did it in a roundabout way, so that it wouldn’t be taken to be—
“Q. Did you say anything to him then about giving a copy to Mrs. Trautz?
“A. No.
“Q. Did he say to you when he took both of them that he would give one to Mrs. Trautz?
“A. Yes, he did.
“Q. While Mrs. Trautz was there — while both Mr. Trautz and Mrs. Trautz were in your presence, did Mr. Trautz give one copy of the claim of lien to Mrs. Trautz ?
“A. Yes, he did. * * *
“Q. So that there is no doubt but what that copy of the claim of lien was placed in the hands of Mrs, Trautz personally in your presence?
“A. No, there is no doubt.
“Q. You saw that done?
“A. Yes.”
We now quote from Mr. Smith’s testimony:
“Q. As a representative of the Hamtramck Lumber Company, in this particular instance, did you serve a copy of your claim of lien upon Mr. Trautz and Mrs. Trautz ?
“A. I did. * * * After I had filed the lien for the Hamtramck Lumber Company I took two copies of the lien to serve upon Michael Trautz and Kathryn Trautz. I took two copies of them after they were filed and went to look for Mr. and Mrs. Trautz, Michael Trautz and Kathryn Trautz. I. went to their home on 123 Puritan avenue every day during the entire ten days with the exception of Saturdays and Sundays. * * * I can’t exactly say how many times but several times I stopped in the morning to get service on Mr. and Mrs. Trautz. * * * I telephoned Mr. Trautz and I told him I had a lien to serve on he and his wife, that I had called at the place of residence several times but was unable to find either one at home, and I asked him when I could make service. He said, ‘You can see me any time after 6:3Q, but you cannot see my wife.’ I said ‘Why.’ ‘Well’ he says, ‘she is not feeling well.’ * * * I explained to him that I had to make personal service and I explained to him that I must hand it to her personally. ‘Well’ he said, ‘she is all shot, she is in bad shape and a nervous wreck and you cannot see her, and you can serve me. I will take all papers.’ When I saw his attitude I didn’t argue any further, but went out to his house the next evening at 6:30 and met Mr. Trautz at his home and asked him where his wife was and he said she was — had gone South — he mentioned the place, but I have forgotten, but I remember distinctly as I figured, out of the county and out of the city, and therefore it seemed to remove all possibility of serving her within the county. I talked to' Mr. Trautz at least one hour and one half because he was very much worked up over this matter and I sat in his home. During the entire hour and a half I heard no woman’s voice; I heard no other noise except our own talking; and I believed she was, as he told me on the visit, and he said she had gone on a visit to get her health back, that is, to get her nerves in shape. Then after he had told me that, I then served him, or I then served her, by delivering a copy to him, and gave him a copy of the lien for himself and one for Mrs. Trautz * * * and I asked him if he was her agent, having charge of the premises, because I thought it necessary to put in that little paragraph, and he said, ‘yes, certainly, I have charge of the premises. This is mine.’ ”
Mr. Trautz did not agree with Mr. Smith’s statement that he told him his wife was away, and his testimony was in conflict with that of Mr. Martin and Mr. Smith in other respects. Mrs. Trautz was not a wjtness, nor was her deposition taken.
The instant case is quite unlike the two cases, supra, cited by counsel for the appellants. The trial court believed the testimony of Mr. Martin and Mr. Smith, and did not believe the testimony of, Mr. Trautz where it was in conflict with theirs. What was said in a recent case in this court is germane:
“Upon this testimony the trial judge who saw the witnesses concluded that notice was served, and sustained the lien. We are satisfied that he was right in his conclusion.” Acme Lumber Co. v. Construction Co., 214 Mich. 362, 363.
Section 27 of the mechanics’ lien law (section 14822, 3 Comp. Laws 1915) reads:
“This act is hereby declared to be a remedial statute and to be construed liberally to secure the beneficial results, intents and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for and to give jurisdiction to the courts to enforce the same.” * * *
The statute was construed recently, we quote:
“In such consideration we shall be guided by the rule that the proceedings are statutory, that the essential requirements of the statute leading up to the attaching of the lien must be complied with and the provisions of the statute in. that regard must be strictly construed. Smalley v. Terra Cotta Co., 113 Mich. 141. But this does not mean that such provisions shall be ‘strangled by technicalities' or that a forced or a strained construction should be indulged in order to defeat the lien.” Acme Lumber Co. v. Construction Co., 214 Mich. 360.
The defense urged is too technical.
The decree is affirmed, with costs to appellees.
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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Stone, J.
The plaintiff - is a Michigan corporation, doing business at Grand Rapids. Defendant is doing' business at Pine Bluff, Arkansas, as J. C. Love Lumber Company. In this action plaintiff sued defendant to recover damages because of defendant’s alleged breach of a contract to deliver to plaintiff two car loads, of lumber. Under the plea of the general issue the defendant gave notice that if any contract was made as alleged by plaintiff, it was, on or about March 28, 1919, canceled by the plaintiff by its refusal to accept further shipments thereunder, which cancellation rendered said contract of no further force or effect. The contract and the relation existing between the parties are, as testified to by plaintiff, “all fixed and determined by the correspondence,” all of which was received in evidence and is embodied in the record. The case was tried by the court without a jury and resulted in a judgment for the plaintiff for $766 damages, and costs.
Defendant having requested special findings, the court below made and filed certain findings of fact and conclusions of law, and found that plaintiff was entitled to recovery for the following reasons:
“1. That there was a full, complete and definite contract between the parties for four cars of lumber which contract was never canceled by the parties.
“2. The defendant shipped two cars of lumber under the contract, but definitely refused to ship the other two cars of lumber to plaintiff, and has never done so.
“3. The defendant having breached the contract on November 2, 1919, the plaintiff is entitled to recover as his damages for breach of said contract the difference between the contract price and the market price at the time of the breach.”
The defendant duly proposed amendments to said findings, all of which were refused, and exceptions were duly taken to such refusal.
Prior to February 21, 1919, there was some correspondence between the parties relative to lumber which defendant had for sale, and which plaintiff might purchase. An intelligent statement of the correspondence must necessarily be somewhat lengthy. After a careful reading and consideration of the record we think that the following statement sets forth the dealings and material correspondence of the parties: On or about February 21, 1919, the plaintiff sent to the defendant its order 2,012 for lumber reading as follows:
“Purchasing Order.
“Date: Feb. 21, 1919.
Our Order No. 2,012.
Shipping Date: See below.
Routing: See below.
“To J. C. Love Lumber Co.,
“Address, Pine Bluff, Ark.
“Ship to Skillman Lumber Co.,
“Delivery, Grand Rapids, Mich.
“Charge to Skillman Lumber Co.
“Terms 2 per cent, off for cash in 10 days, net 90 days note from date of invoice.
“Four cars of approximately 15 M. feet each 5/4 No. 1 common to' include the selects, plain sap gum at $35.50 per M. f. o. b. cars Grand Rapids, Michigan, buyer to pay war tax on freight bill.
“Lumber to be good widths, standard lengths, well manufactured, thoroughly dry, and no No. 2 common to be included. We must have a good straight car of No. 1 common, to be subject to the National Association rules of inspection.
“You may load one car of this stock at any time that suits your convenience, and ship it as stated above, and be sure to get our name right, and specify on the bill of lading, routing to be I. C. and P. M. from Chicago.
“If this car is satisfactory when it comes in, then we will take the other three cars to be shipped at the rate of one per month, or faster if we can get our customers to take it.
“Yours truly,
“Skillman Lumber Co.”
On receipt of this order, and on February 24, 1919, the defendant wrote the plaintiff, in part, as follows:
“Replying to yours of the 21st, enclosing order for 5/4 common sap gum, we thank you for this business. We are operating our business on a small capital and it is very necessary that our invoices are paid promptly, in order that we may continue in business. In selling you this stock it was our understanding that the, terms were to be regular 2 per cent, off for cash, or 60 days net. We note on your order you have the terms 2 per cent. 10 days, or net 90 day note. We trust that you will be able to discount these invoices.”
The first car of lumber shipped under order 2,012, being car 84,011, was invoiced February 28, 1919, and was received by the plaintiff on March 27, 1919. Plaintiff did not pay for the car on terms of 2 per cent, off for cash 10 days, net 90 . day note from date of invoice, but paid for it with two notes dated April 19, 1919, and due respectively on July 16th and July 22, 1919. The date of the invoice was February 28th. The car was not satisfactory to the plaintiff, and, on the day of its receipt, plaintiff wrote defendant as follows:
“Please do not ship any more lumber on our order 2,012, until you hear from us again. This stock that you are sending us.is not satisfactory to us. We are going to write you fully in a day or two.”
On March 28, 1919, plaintiff again wrote defendant as follows:
“We are able to give you a report on the cars that have come in and been turned over to our customer, and been unloaded either by them or by ourselves in our yard, some of which have been refused by our customer because the stock was not what they bought, nor what we bought, and we have had them unloaded in our yard. We have commented on each car, and we cannot take any more of your stock, and neither can we settle for these cars, as we had agreed to do, for the reason that if the stock had been what we bought or bargained for, it could have gone direct to our customer, and we would have been able to give you a settlement as per the terms agreed upon. Now, please cancel any unfilled orders that you have from us, and let us hear from you about the cars that we are reporting on.”
The only unfilled order at that time, appearing in this record, was order 2,012, the one in question.
On March 31,1919, defendant wrote plaintiff in part as follows:
“We want you to let us complete the 5/4 common sap order, and the writer will load this out himself, as we are anxious to find out just what grade your people require. We will not ship you any more stock until we get this matter cleared up.”
To this letter there was the following reply by plaintiff, dated April 3, 1919:
“We note contents of yours of 31st of last month, and as stated in our previous letter, we do not want to take in any more of your lumber until such time as we come to a satisfactory settlement on what has been shipped.”
On April 24th plaintiff wrote defendant as follows:
“Now, there are three cars of 5/4 No. 1 common still due us on order 2,012, and in a recent letter you said .that you wanted to ship us these three cars to prove that you could load out yourself stock that was right. Please advise what your desire in the matter is.”
In reply to this letter defendant wrote plaintiff as follows on April 27th:
“We can ship you the other cars 5/4 No. 1 common sap gum due on your order, but will have to ask you to pay us cash. We pay spot cash and discount all our bills, and we cannot pay for lumber with your notes. We would be glad to ship you this stock, and the writer will load sameout, so we can see what kind of treatment your inspector is giving us. If you can pay for this stock c'ash, advancing 75 per cent, of invoice, wire us/ and we will ship' at once.”
In reply to this letter plaintiff wrote defendant on April 30th as follows:
“We note contents of yours of the 27th instant. * * * We dare not buy any lumber" except on regular lumber terms of two per cent, off for cash in 10 days, or a 90 day note. Now, you can act at your own pleasure about furnishing these other cars of stock. This is stock that we can use provided you will ship us stock that is right, which you say you will do. We surely do not want any more lumber like what you have shipped us, even if we could have a year in which to pay for it. You can think it over and ship us a car now, if you want to; and another car a little later if it suits your convenience. Anyway advise us what you want to do.”
To this letter the defendant replied on May 5th as follows:
“Our terms for selling lumber is 2 per cent, off in 10 days, 1 per cent. 30 days, 60 days net, from date of our invoice, bill-lading attached. Owing to the fact that your account is rather heavy with us just now, we would not care to ship you any more lumber, unless you would agree to honor a sight draft for 98 per cent, of our invoice. We can get as much or more for this stock of 5/4 inch No. 1 common sap gum, as you are paying us, and the only reason we wanted to ship you another car was to find out just what' kind of an inspector you had. The writer intended loading the car himself, so he could see. We think possibly we better let this matter drop until some of these notes are taken up, as we have been bitten by shipping people who have no rating, and we only shipped you this stock because some of our friends recommended, your credit as being O. K. and we trust we will find it to be this way. We still have the car of 4/4 inch common and better red gum that we offered you some time ago.”
To this letter plaintiff made no reply.
On May 19, 1919, the defendant wrote plaintiff as follows:
“We are going to ship you the car 5/4 inch No. 1 C sap gum, and are going to include a small per cent. of 1 and 2 common same price you paid for last. If you cannot use the 1 and 2 wire us at our expense. We have instructed our inspector to make a bang up National grade, and he is a good inspector. We want to find out how your customers are on inspections. We will expect you to pay for this car with a 60 day note.”
On May 23, 1919, plaintiff answered as follows:
“Answering your letter of the 19th instant. We note contents of your letter, and it would be entirely satisfactory to us to let the 1st and 2ds come forward with the No. 1 common. If you ship a car during the month of May, and you want us to give you a sixty day acceptance of it, it would come due the latter part of July, and that will be just at a time when the writer is away, but we will send you a note coming due somewhere between the 5th and the 15th of August, and we trust that this will be satisfactory to you.”
Under date of May 24, 1919, the defendant wrote the plaintiff as follows:
“We wrote you the other day we were going to ship you another car of 5/4 No. 1 Com. gum including a small per cent, of F. A. S. (1st and 2ds) in order that we might see just how rigid your inspection is. We have instructed our man to make a bang up National grade on this stock, and we want you to see to it that we get a fair inspection.”
The invoice for this ear, which was 60,581, was dated May 24th. Plaintiff did not pay for it with a 60-day note, but with a note due August 26th.
Under date of June 26, 1919, the plaintiff wrote defendant the following letter:
“C. & E. I. car No. 60,581, your invoice of May 24, has arrived and been unloaded. This was a nice car of lumber and we were well pleased with it. We fell short in measurement about 100 feet, but our man found a few hundred feet more Is and 2s than you reported, and figuring out his inspection, it falls short of your invoice just exactly 30 cents. That is very, very close.
Amount of your invoice.........................$440.86
Freight as per copy of freight bill enc. .$143.78
June 4 note on account................ 240.86
Cash.................................... 56.22
$440.86
“We have taken 2 per cent, discount on the amount of cash, leaving the net amount of the check enclosed $55.10. If you can ship us lumber like this car, we will be glad to do more business with you, and wish you would send along the balance due us on that old order.”
The correspondence contained in the record is so voluminous, and that part of it relating to the cars in question is so intermingled with other dealings not here involved, that it is difficult to make a clear statement of what is here material. Further demands for the two cars of lumber were made by the plaintiff and refused by the defendant. The two cars of lumber were never shipped. Suit was begun, and a creditor of defendant was garnished. The defendant has brought error. The errors assigned cover all of the questions discussed by counsel.
It is claimed by defendant that the undisputed facts do not support the judgment; that the order (No. 2,012) given by plaintiff to defendant for four cars of lumber, provided that one car should be shipped immediately, and the order then specified:
“If this car is satisfactory when it comes in, then we will take the other three cars, to be shipped at the rate of one car per month, or faster if we can get our customer to take it.”
It is argued by defendant that this was a definite order for one ear only, plaintiff expressly reserving the right to take the other three cars, only if the one car was “satisfactory when it comes in.” The correspondence clearly shows that the first car when it came in was not satisfactory to the plaintiff. On March 27, 1919, the plaintiff wrote defendant as follows:
“Please do not ship any more lumber on our order No. 2,012, until you hear from us again. This stock you are sending us is not satisfactory to us. We are going to write you fully in a day or two.”
On the next day the plaintiff clearly canceled the order for the three other cars in the following language:
“Now please cancel any unfilled orders that you have from us.”
It is claimed by defendant that there never was a time thereafter when the minds of the parties met covering the sale and delivery of the other three cars. There is much force in the claim that the sale covered by order No. 2,012 was canceled by mutual consent. Defendant had written plaintiff under date of March 31st:
“We will not ship you any more stock until we get this matter cleared up.”
Any other offer to ship later was based upon different terms and conditions. The correspondence taken as a whole shows, we think, a cancellation by mutual consent. The rule as to cancellation is stated in 35 Cyc. pp. 128, 130, as follows:
“The power to rescind a sale by agreement is coextensive with the power to contract, and the mutual release of the rights of the parties under the contract of sale is regarded as a sufficient consideration for the agreement. * * * The agreement to rescind may be by parol, and it is not essential that a party in express terms consent to the rescission, but such consent may be implied from his acts or conduct.”
We are unable from this record to point to any date, after the letters of March 27th and 28th, when the minds of the parties met as to the other cars referred to in the original order, when plaintiff agreed to buy and defendant agreed to sell the two cars of lumber sued for.
But conceding that the minds of the parties met, as claimed by the plaintiff, on February 24, 1919, when the order was accepted, and as seems to be conceded by defendant’s counsel in their reply brief, it seems clear to us that the order was later canceled, as we have already indicated. The language contained in plaintiff’s letter of April 30th (in answer to defendant’s letter of April 27th in which he had offered to ship a car for cash) is very significant. It was as follows:
_ “Now, you can act at your own pleasure about furnishing these other cars of stock. This is stock that we can use, provided you will ship us stock that is right, which you say you will do. We surely do not want any more lumber like what you have shipped us, even if we could have a year to pay for it. You can think it over, and ship us a car now, if you want to, and another car a little later, if it suits your convenience.”
This is hardly the language of a party who supposed that he had a binding contract with another. On the contrary, it indicates that plaintiff did not consider itself bound in any way to take additional stock, and that it did not consider that defendant was bound to deliver additional stock. Defendant replied to this letter on May 5th, stating:
“Owing to the fact that your account is rather heavy with us just now, we would not care to, ship you any more lumber unless you would agree to honor sight draft for 98 per cent, of our invoice.”
To this letter plaintiff made no reply.
We repeat that from the record we are unable to point to a time subsequent to March 28th when the minds of the parties met on the purchase and sale of the two< cars of stock involved in this suit. The fact that the defendant did ship a second car of lumber was, under the circumstances, in no way a, recognition of the existence, or of the revival of a binding contract. It contained a different kind of lumber, and the terms of payment differed from the original order. Special reasons were given for its shipment, as is shown by the correspondence. Certainly there was no recognition of a duty to ship the two other cars of stock which are the subject-matter of this suit.
Upon the whole record we are of the opinion that the correspondence, which comprises the undisputed facts of the case, establishes and supports the conclusion of law that the original order was canceled by the parties, and that at no time thereafter was there a binding agreement for the purchase and sale of the two cars of stock here involved.
It follows that the judgment below must be reversed, and no new trial will be granted.
Steere, C. J., and Wiest, Fellows, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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Clark, J.
Plaintiff presented a claim against defendant estate in the probate court for work and labor of August Bunde from January 1, 1870, to October 1, 1917, 573 months, at $5 per month, with board and clothes, $2,865. From the allowance there the estate appealed. In the circuit court plaintiff had verdict and judgment for $650. The refusal to direct a verdict in favor of the estate upon motion made at the close of plaintiff’s case and renewed at the conclusion of all the proofs is said to be error, it being claimed that during the period covered by the claim August Bunde was a member of the family of decedent, Fred Bunde, and that there was no evidence that the services were rendered with expectation on the part of either that they were to be paid for, and that they were presumptively gratuitous.
In 1869 Fred Bunde came from Germany to Ma-comb county and two weeks later was followed by his brothers, William, August and Michael. Fred was then married. The other brothers were not married. August was a deaf mute and among the brothers it was then understood that he should make his home with Fred who then and for several succeeding years was a common laborer, later a tenant farmer for many' years and during the last years of his life a farm owner. August lived with Fred at his home and was a member of his family from about January 1, 1870, to the time of Fred’s death in October, 1917. Besides the husband and brother the family consisted of the wife, a son and three daughters. For several years following 1869 Fred and August were in the employ of others. Since Fred engaged in farming August worked with him on the farm.
Testimony for plaintiff was directed to the character and value of August’s labor upon the farm. He did ordinary farm labor and chores. During the last years Fred owned but 20 acres. The son also assisted at times. When Fred died August was about 75 years of age. And to support the claim that the services were rendered with expectation and intention on the part of both Fred and August that they were to be paid for, plaintiff had the testimony of the brothers William and Michael of statements claimed to have been made by Fred in 1869 or 1870, in so far as any time is fixed:
“A. Yes, sir; I told him (Fred) where August was. He said, T want August.’ August came down where he was, and he took him to his home in Capac.
“Q. Did you have any talk with Fred in which Fred told you what arrangement he would make or did make with August to have August work for him?
“A. Yes. * * *
“Q. What did Fred say?
“A. He said he would take August.
“Q. What did you say to him?
“A. He said he would work a year for—
“Q. Do what with his wages?
“A. He said he would take August and work his year out.
“Q. Yes?
“A. ‘You save his wages,’ and he said ‘yes.’
“Q. You will take care of his wages?
“A. Yes, sir; that is what he talked.
“Q. What arrangement did Fred tell you he had with August?
“A. He said he was going to keep Gus and work for him. ‘What are you going to do about collecting his wages?’ He said, T am going to save all I can for him. He will be well taken care of.’ Gus was at Fred’s only a short time. He got Gus work from a man by name of Mucker. Gus was to have twelve dollars a month and his tobacco.
“Q. Did you ever have any talk with Fred about August’s work?
“A. Yes, sir.
“Q. What did Fred say?
“A. Well, I spoke to him one time, ‘what are you going to do about August’s pay? There will be something he will have to have, to have something out of this,’ and he says, T will take care of that.’ ”
And while Fred and August were in the employ of others it is said that Fred replied affirmatively to the question “Are you saving anything for August” and of this time there was other testimony of statements by Fred that he would save August’s wages and testimony that he collected August’s wages. As we read the record all this testimony relates to wages earned by August not in the employ of Fred but of others. No complaint is made of a ruling of the trial court that under the claim filed there could be no recovery for wages of August which Fred had collected from others. There is no evidence that August ever asked for wages of Fred before Fred’s death and we think no evidence that the subject of wages was mentioned during nearly 40 years preceding the death. It is undisputed that August was clothed, ate at the family table, had from Fred spending money, “always had money,” “had two pouches where he carried it,” his washing was done, his medicines were furnished and his doctor’s bills were paid, and because of his certain personal peculiarities, congenital and acquired, Mrs. Bunde was afraid, of him and she said: “we had lots of trouble with August.”
From this testimony it may not be implied that there was an agreement that August should be paid for his services while living in Fred’s family and working on his farm, nor that such services were given and received with the expectation by both that they were to be paid for. It must be presumed that the ser vices were gratuitously performed. See 18 Cyc. p. 412; In re De Haan’s Estate, 169 Mich. 146.
A verdict for defendant should have been directed. The judgment is reversed, with costs, and a new trial granted.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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Fellows, J.
Plaintiff’s husband, George M. Crane, was in the employ of defendant Leonard, Crossette & Riley, an Ohio corporation authorized to do business, in this State. It was engaged in buying and shipping produce and operated at about 40 points in Michigan, among the points being Greenville where Mr. Crane was employed. It had elected to come under the workmen’s compensation act and defendant Southern Surety Company carried the risk. On December 11, 1919, the company shipped out three cars of potatoes, one to Chicago and the others to St. Louis. It was the custom of the company at that time of year to have an employee accompany the shipment for the purpose of keeping up a fire in the cars to prevent the freezing of the potatoes. Mr. Crane was employed for this purpose. The cars arrived in Chicago the following day. In the evening of December 13th, Mr. Crane was found unconscious in one" Of the cars with a badly crushed skull. He was hurried to a hospital but died soon after. The evidence is convincing that he must have received his injury after the cars arrived in Chicago. The board awarded compensation upon the theory that the act applied whether the death, occurred within or without the State.
/ We, therefore, have .submitted to-us for the first time '’the question, and it is the only question in the case, of whether the employer who has elected to become subject to the workmen’s compensation act is liable, where the employee, who has also elected to become I subject to the act, received his injuries outside the I State while in the course of the employment. The case has been ably briefed and the labors of the court materially lightened by the research of counsel.
The contention of defendants’ counsel that the act does not apply where the accident occurs outside the State finds support in the English cases. See Hicks v. Maxton, 1 B. W. C. C. 150; Tomalin v. S. Pearson & Son, Ltd., 2 B. W. C. C. 1; Schwartz v. Indiarubber, etc., Co., 5 B. W. C. C. 390. These cases unequivocally hold that no liability exists where the accident occurs outside the British Empire.
Undoubtedly the earliest case in this country is Gould’s Case, 215 Mass. 480 (102 N. E. 693, Ann. Cas. 1914D, 372). This is a case of first impression so far as the rule in this country is concerned. In it the Massachusetts court followed the English holdings and found insuperable difficulties in holding otherwise. We shall not attempt to distinguish this case from the holdings in other states where the same question has arisen, nor is there such a difference between the Massachusetts act and our own as to justify us in saying that it is not applicable. If we accept it as controlling authority, it would necessarily follow that defendants’ contention must be sustained. That it has not been followed in many States, and that its doctrine has met much adverse criticism will be demonstrated by an examination of the authorities to which we shall presently refer. Mr. Bradbury followed it in the first edition of his work (see Bradbury on Workmen’s Compensation [1st Ed.], p. 44), but when the second edition was prepared he had modified his views (see 1 Bradbury on Workmen’s Compensation [2d Ed.], pp. 50, 51), and in the third edition (see Bradbury on Workmen’s Compensation [Sd Ed.], p. 92), he said:
“Therefore, now, as in the second edition of this work, partially receding from the position taken in the first edition of this work, although that position has been sustained by eminent authority, it is believed that the doctrine which must be established finally will be, in effect, that the law of the place where a contract of employment is made will govern the rights and liabilities of employees and employers to claim and to pay compensation.”
That Mr. Bradbury was convinced that the weight of authority was against the Massachusetts holding and that it should not be followed is evidenced by a note prepared by him to the case of Spratt v. Sweeney & Gray Co., 168 App. Div. 403 (153 N. Y. Supp. 505), found in 9 N. C. C. A. 918, After citing the Gould Case and early holdings of our board and the Wisconsin commission, he said:
“Upon more mature deliberation, however, other courts came to a contrary conclusion. They held that inasmuch as the liability of an employer to pay compensation for injury to. an employee was essentially a contractual one under the workmen’s compensation acts, that such statutes had extra-territorial effect, to the extent that where the employer and the employee were both residents of the State where the contract of employment was made, the law of that State would be applied, even though the accident happened without the State.”
After considering some of the authorities he continues :
“If, however, a claim under a compensation act is based on a contract, either express or implied, then there is no more reason why such a claim should not be decided in accordance with the law of the place where-the contract is made, any more than there would be fora claim for wages in accordance with the law where the contract was made, even though the employees performed the services in several States.”
The Illinois court also sustains the contention of defendants’ counsel. Union Bridge Co. v. Industrial Commission, 287 Ill. 396 (122 N. E. 609). While it is true that by the title to the Illinois act it is limited to “accidental injuries or deaths suffered * * * within the State,” the court did not rest decision on this fact alone but followed the doctrine of the Gould Case.
The supreme court of California in North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1 (162 Pac. 93, L. R. A. 1917E, 642), held that the act of that State did not cover accidents occurring outside the State. But the California act is a compulsory one, not optional as is ours. This undoubtedly had much to do with the result in this case which was disposed of on rehearing.
Mr. Honnold, treating of this subject (1 Honnold on Workmen’s Compensation, § 8), says:
“In view of the conflict of authority and differences between the various acts, it is difficult to formulate a precise rule relative to the extra-territorial operation of these laws; but it may be stated on the weight of authority that acts not construed to be contractual in character do not, in the absence of unequivocal language to the contrary, apply where the injury occurs outside the State, while, on the other hand, acts construed to be contractual protect one injured outside the State, where the contract of employment was made within the State and is governed by the laws of the State.”
We shall now consider the decision of some of the States sustaining the contention of plaintiff’s counsel. The gist of the later decisions is quite well stated by the supreme court of Colorado in Industrial Commission v. Insurance Co., 64 Colo. 480 (174 Pac. 589), where this question was before that court. After considering the Gould Case and quoting from Bradbury’s second edition, it is said:
“The later authorities in this country base the conclusion chiefly on the proposition that, under voluntary compensation statutes such as ours, the cause of action of petitioner is ex contractu, and that the lex loci contractus governs the construction of the contract and determines the legal obligations arising under it.
“The provisions of the compensation act are to be construed as written into the contract, and therefore a part of it.”
The question has been before the courts of New Jersey on several occasions. In Rounsaville v. Railroad Co., 87 N. J. Law, 371 (94 Atl. 392), it was said:
“We are now dealing with the simpler question, whether a New Jersey court will enforce a New Jersey contract according to the terms of a New Jersey statute. The question hardly calls for an answer. The place where the accident occurs is of no more relevance than is the place of accident to the assured in an action on a contract of accident insurance, or the place of death of the assured in an action on a contract of life insurance.”
In Deeny v. Wright & Cobb Lighterage Co., 36 N. J. L. J. 121, where the question was before the court, it was said:
“It appears that there is an implied contract to compensate for injuries arising out of and in the course of the employment and under it all other methods and rights to any other form of compensation are relin quished. The statute can have no extra-territorial effect, but it can require a contract to be made by two parties to a hiring that the contract shall have an extraterritorial effect. The contract is binding on the employee himself and upon the employer, and it is conclusively presumed that the parties have accepted the provisions of section 2 and have agreed to be bound thereby. The method of termination of the contract is provided for in paragraph 10. It would seem that the reasonable construction of the statute is that it writes into the contract of employment certain additional terms. The cause of action of petitioner isi &x contractu. The lex loci contractus governs the construction of the contract and determines the legal obligations arising from it.”
And in Foley v. Home Rubber Co., 89 N. J. Law, 474 (99 Atl. 624), compensation was awarded for the death of an employee who went down with the Lusitania on his way to Europe in the master’s service.
Plaintiff’s contention is supported by Kennerson v. Thames Towboat Co., 89 Conn. 367 (94 Atl. 372). This is an exhaustive opinion. We shall not quote from it. It will be found in L. R. A. 1916A, 436, accompanied by a note having reference to the authorities.
We shall not consider the earlier New York cases disposed of by courts other than the court of last resort as the court of appeals of that State has had the question before it and has determined it in accordance with plaintiff’s contention in the case of Matter of Post v. Burger & Gohlke, 216 N. Y. 544 (111 N. E. 351, Ann. Cas. 1916B, 158). It was there said:
“The act, in view of its humane purpose, should be construed to intend that in every case of employment there is a constructive contract between the employer and employee, general in its terms and unlimited as to territory, that ^the^ employer shall pay as provided by the act for a disability or the death of the employee as therein stated. The duty under the statute defines, the terms of the contract.”
The supreme court of Rhode Island fully considered the question in an exhaustive opinion in Grinnell v. Wilkinson, 39 R. I. 447 (93 Atl. 103, L. R. A. 1917B, 767, Ann. Cas. 1918B, 618), and concluded:
“We are of the opinion that the reasoning of the cases above cited from New York, New Jersey and Connecticut is quite applicable to the case at bar; that under the workmen’s compensation act of Rhode Island the relation of employer and employee is contractual and the terms of the act are to be read as, a part of every contract of service between those subject to its terms; that on principle and in reason and in view of the purpose, scope and character of the act it should be construed and held, to include injuries arising out of the State as well as those arising within it; and that the weight of authority upon acts similar to our own gives full support to our conclusion.”
The question was before the supreme court of Iowa in Pierce v. Storage Co., 185 Iowa, 1346 (172 N. W. 191). We quote quite extensively from what was there said:
“We hold that we are not precluded ' from finding that our own statute covers injuries sustained in another State because the act does not, in terms, declare that the statute shall have such effect, and that we may find it has such effect, because its language is broad enough to cover such injuries, and that to construe it as covering them effects the broad, beneficial object of the enactment. * * *
“Our statute is confessedly elective. We are told that no distinction in construction is to be based upon whether the act is compulsory or elective. That is true as to some provisions of compensation acts. But that the statute is elective has controlling bearing on one thing that is most highly important. Where the statute is elective as to both employer and employee, payment of compensation is not the performance of a statute duty, but the performance of conditions in the contract of hiring, which conditions are in the contract by means of reading the compensation statute into the contract. * * * The entire structure of the Iowa act not only fails to prohibit such a contract, but, by being elective, creates a contractual relation under a contract providing for settlement on a standard fixed by the Iowa act. Such a contract is no more objectionable than one providing for a common-law arbitration. See Hunter v. Coal Co., 175 Iowa, 245 (154 N. W. 1037, 157 N. W. 145, L. R. A. 1917D, 15, Ann. Cas. 1917E, 803). Under such a contract, the employee could not refuse to obey, if the master directed him to leave the State to perform an act in the course of the employment. If he did obey, there is no reason why the master should be allowed to repudiate that part of the contract of employment which provided how compensation should be made if the servant suffered an injury while obeying this direction. Such a contract protects both, and defines the rights of both. The master is assured of the limitations of his liability. The servant is assured of definitely fixed compensation, mutually agreed upon as adequate, and that he will receive the same promptly, and without the vexation or expense of litigation.
“We hold that the employee in this case has a valid contract, which allows him to recover compensation according to the terms of the statute for an injury suffered in Nebraska; that the case stands precisely as if it had been expressly contracted that, for an injury suffered outside of the State, the compensation due should be determined by the terms of the Iowa statute.”
The West Virginia court was called upon to consider the question in Gooding v. Ott, 77 W. Va. 487 (87 S. E. 862, L. R. A. 1916D, 637), where the court said:
“A distinction has been noted in some of the authorities) between cases arising under compulsory statutes and those controlled by statute, as in New Jersey, and we think in this State, which are optional. Where the statute compels submission by the employer and employee, there is no contract, as a general rule, enforceable outside of the State. But where, as in New Jersey and in this State, the statute makes acceptance optional, and the parties freely enter into the contract of employment with reference to the statute, the statute should be read into the contract as an integral part thereof, binding the parties, and enforceable in any jurisdiction the same as any other contract.”
This case was followed in Foughty v. Ott, 80 W. Va. 88 (92 S. E. 143).
The supreme court of Minnesota in State, ex rel. Chambers, v. District Court, 139 Minn. 205 (166 N. W. 185, 3 A. L. R. 1347), had this question before it. It called attention to the diversity of authorities and tersely stated:
“The weight of authority supports the view that, under an elective act like ours and with facts such as are present, an accidental injury though it occurs outside the State is compensable. This view we adopt.”
The supreme court of Wisconsin considered the question in the very recent case of Anderson v. Miller Scrap Iron Co., 169 Wis. 106 (170 N. W. 275, 171 N. W. 935), and there said:
/
“As has been said, the workmen’s compensation act is based upon the economic theory that it is in the interest of the general welfare that damages arising from injuries sustained by persons engaged in a particular industry shall be borne by that industry. The liability of the employer at common law was limited to cases where negligence could be established. Where negligence was established the burden was borne in the first instance by the employer, who ordinarily had an opportunity to pass all or part of the burden on. In cases where negligence could not be established, the injured employee bore the entire burden with no opportunity to pass it on. Under the workmen’s compensation act the burden falls upon society at large, and is not borne entirely either by the employer or by the employee. If the application of the law be limited to injuries occurring within this State, then in the case of injuries sustained without the State the employer will not be liable except he be negligent, and where he is not negligent the whole loss must be borne by the employee, and the whole legislative purpose is, as to injuries sustained without the State, defeated. We have extensive borders; thousands of employees are passing out of and into Wisconsin daily, and almost hourly, in the discharge of their ordinary duties. Can it be that the legislature intended that every time these employees crossed the State line their right to compensation for injuries incidental to and growing out of their employment should be changed, and that as to injuries which occur beyond the State line the old system instead of the new should apply? * * *
“If the workmen’s compensation acts of the several States are to be given effect so as to make them general in their application, they must be held to apply to injuries to employees wherever they occur. If accidents occurring without the State are to be in one class and accidents occurring within the State are to be in another class, every State might have a workmen’s compensation act and yet both the old and the new systems would still be in force and the legislative purpose would not be accomplished. The construction here placed upon the act will give the legislative intent full effect, and if recognized by the courts of sister States will give every employee the remedy provided by the workmen’s compensation act under which his contract of employment was made.”
The authorities, and particularly the later ones, lead irresistibly to the conclusion that where the act is an optional one, as is ours, the relations are contractual and the provisions of the act become a part ,of the contract of employment, the employer agreeing ¡to pay and the employee agreeing to accept compensation in case of accident in accordance with the provisions of the act. That the relation under our act is contractual has been recognized by this court. In Mackin v. Detroit Timkin Axle Co., 187 Mich. 8, it was said:
“In some States the law is made compulsory upon both parties or upon one with choice to the other, giving rise to questions which need not be considered here, since the law in this State, as applied to this case, be comes operative upon neither employer nor employee who does not expressly or impliedly consent; but, if the employer so elects, and the employee does not give written notice to the contrary, he is conclusively presumed to have consented, and comes under the act.”
And in Dettloff v. Hammond, Standish & Co., 195 Mich. 117, it was said:
“On the other hand, the liability of the creamery company, by virtue of the workmen’s compensation act, rests solely upon contract.”
Reliance is placed on Willis v. Oscar Daniels Co., 200 Mich. 19, to sustain defendants’ position. But that case dealt with an accident on government land to an employee in the employ of a government contractor. It did not involve the question here before us. Commenting on this case we said in Oscar Daniels Co. v. City of Sault Ste. Marie, 208 Mich. 363:
“Willis v. Oscar Daniels Co., supra, may, and should, rest upon the ground that the State legislation sought there to be enforced affected the United States in a matter over which it had exclusive jurisdiction, namely, the building of a lock in the ceded territory.”
But it is insisted by defendants’ counsel that the act, being in derogation of the common law, must be strictly construed; that certain provisions of the act show a legislative intent that it shall not apply to accidents occurring outside the State. Manifestly if the act shows such intent it is our duty to so hold. It is first pointed out that the concluding words of the title are:
“And restricting the right to compensation or damages in such cases to such as are provided by this act.”
We cannot feel that the legislature in the use of this language intended to limit the locus of the accident, or to intend that compensation for injuries should only be allowable where the accident occurred within the State. If such had been the intent of the legislature, a few simple words would have clearly expressed it. The other provisions which are thought to be persuasive are the provision in section 8 of part 3 (2 Comp. Laws 1915, § 5461) providing that the hearings of the committee of arbitration “shall be held at the locality where the injury occurred,” and the provision found in section 13 of part 3 (§ 5466) providing for presentation of a certified copy of the award “to the circuit court for the county in which such accident occurred,” and providing for judgment “without notice.” Similar provisions to these were deemed persuasive to the Massachusetts court in the Gould Case, but as already indicated we do not follow that holding. The provision for the hearings of the committee of arbitration need not be literally followed, the hearing need not be held at the very spot the accident occurred. It was designed that it should be held at a convenient place for parties and their witnesses and does not make void a result reached at some other place in the absence of rights being prejudicially affected. It does not convince us that compensation should be refused where it is impracticable to hold the hearing on the very place of the accident. The other provision, it will be noted, permits rendition of judgment “without notice.” We are not persuaded that this provision is exclusive. As pointed out by plaintiff’s counsel, if judgment is desired without notice to the other party it may be entered under the provisions of this section, but if these provisions are not applicable there is nothing in the act which prevents suit upon the award as upon a common-law arbitration.
Both of these provisions are found in the part of the act dealing with “procedure,” and not in the parts of the act dealing with liability. We must decline to follow defendants’ counsel in this contention. To recapitulate: Plaintiff’s husband was employed In Michigan to work for defendant. The contract of employment was a Michigan contract and the workmen’s compensation act became and was a part of it. Both parties agreed to be bound by its terms. The contract was to be performed within and without the State. Deceased met his death'Within the ambit of his employment. The rights being contractual accompanied the employee wherever he went within the ambit of his employment. This construction is within the legislative intent when we consider the purposes of the act. And this is the construction it must receive at our hands.
The award is affirmed.
Steere, C. J., and Moore, Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Fellows, J.
The facts in this case were stated in the opinion when this case was here before. Kane v. Insurance Co., 204 Mich. 357. This renders their repetition unnecessary. Another trial has been had resulting in a verdict by a jury in favor of the plaintiffs. The controlling law of the case was there settled. The second trial was had in conformity with it. Defendant now insists that there is reversible error upon the present record in the admission of testimony, and that the verdict should have been set aside as against the weight of the evidence.
An examination of the record when the case was here before discloses that the testimony objected to was also received on the first trial over objection, and that error was likewise there assigned upon its admission. While it was not then as fully discussed in defendant’s brief as it now is, the question was before the court, but was not considered as of sufficient controlling importance to require discussion and decision. The testimony objected to tended to show that a blank application for the insurance was signed by the deceased and was afterwards filled out by Solomon, and that some of it was filled out by the secretary of Mr. Meltzer, city manager of defendant, and at her suggestion; conversations with her and with Mr. Meltzer were also received over objection; testimony was also received tending to show that deceased was an illiterate man and unfamiliar with the English tongue. Undoubtedly this testimony was properly received as bearing upon the anticipated defense that there was a fraudulent conspiracy between Mr. Solomon and deceased to conceal from defendant the true facts and thereby obtain the policy. Ketcham v. Accident Ass’n, 117 Mich. 521, cited and quoted from in the former opinion. Later the court instructed the jury to disregard some of this testimony, being all that defendant’s counsel then called attention, to. We are not persuaded that there is any reversible error in the reception of this testimony. It not infrequently occurs in the trial of lawsuits that testimony comes into a case in anticipation of a claim as to the law and which is proper to meet such claim if made, but which becomes unimportant when the trial judge finally concludes upon what theory he will submit the case to the jury. If such testimony has no bearing upon the ultimate questions for the jury to decide, the trial judge upon proper request should, usually does, and in this case did, instruct the jury to disregard it. We must assume that the jury was made up of intelligent men who understood and gave heed to the charge of the court. It was clear and concise, easily understood and is not complained of.
Counsel for defendant has by proper motion and exceptions reserved for our consideration the question of whether the verdict was against the weight of the evidence. The crucial question in the case as it was submitted to the jury was whether the officers of the company knew that Mr. Kane’s application for insurance had been declined by the New York Life Insurance Company that he was a rejected risk. Mr. Solomon testified that he so informed them; this they deny. In determining the question now before us, it must be borne in mind that we are not the triers of the facts, that we are only to decide whether the trial judge committed error in denying the motion for a new trial, and that we may reverse on this ground only when the verdict is against the clear weight of the evidence. In Pachuczynski v. Railway, 202 Mich. 594, this court said:
“But in the determination of the question in this court it must be borne in mind that this court is not the trier of the facts. We cannot invade the province of the jury. It must also be kept in mind that the trial judge heard and saw the witnesses, was in a position to judge of their credibility and their mental capacity; that the presumption that he correctly measured them must be considered, and that we may. not set aside a verdict unless it is manifestly against the clear weight of the evidence.”
See, also, Gardiner v. Courtright, 165 Mich. 54; Krouse v. Railway, 170 Mich. 438; Fike v. Railroad Co., 174 Mich. 167; Druck v. Antrim Lime Co., 177 Mich. 364; McGary v. Buick Motor Co., 182 Mich. 345; Darling v. Railway Co., 184 Mich. 607; Faulkner v. Parish Manfg. Co., 201 Mich. 182.
The jury had the right to consider the interest of the witnesses. Mr. Solomon was disinterested so far as this record discloses. His testimony in some regards is inconsistent; the jury had before it these inconsistencies. Defendant’s officers were interested. The jury had the right to consider this and the further fact that they were busy men, handling probably hundreds of transactions monthly. The actuary of the company has a distinct recollection of the president bringing Mr. Solomon to him and introducing him. The president does not remember ever seeing Mr. Solomon until the first trial. The trial judge.who saw the witnesses was not persuaded that he should grant a new trial on this ground. A careful examination of this record satisfies us that the verdict is nob so manifestly against the clear weight of the evidence that we should set it aside, nor are we satisfied that it is the result of prejudice or the reception of Improper evidence.
The judgment will bei affirmed.
Steere, C. J., and Moore, Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Bird, J.
Plaintiff, Bradby, commenced two suits in the Wayne circuit court by writs of capias ad respon dendvm against Charles Campbell and Fred A. Van-natter. The defendants, soon after being apprehended, moved to quash the writs on several grounds. Two of the grounds were held sufficient and the writs of capias were quashed, the court permitting the writs to stand as summonses in the cases. Plaintiff requests this court to issue a mandamus to compel defendant to set aside this order.
One of the grounds upon which the trial court based this order was the failure of plaintiff to file his declaration and supporting affidavits before service of the writ. The record shows that plaintiff filed with the clerk a prxcipe for the writ, and after it was issued he attached his declaration and supporting affidavit to it, and the service was made. The officer then made his return- and the writ, declaration and supporting affidavits were all filed at the same time. We have read with some care the sections of the statute regulating this practice, but we are unable to concur in defendant’s view that the declaration and supporting affidavits miust be filed before the writ is served. Section 12415, 3 Comp. Laws 1915, provides for the issuance of the writ and the indorsement thereon of an order for bail. The next section provides that:
“Such order shall be made only upon the. presentation of a declaration supported by the affidavit of the plaintiff, or some other person having knowledge of the facts, and which declaration with the supporting affidavits, shall be filed, and copies thereof served with the writ.”
This section makes it clear that it was intended that the judge or circuit court commissioner who makes the indorsement for bail shall be entitled to the benefit of the declaration and supporting affidavits as an aid in fixing the bail, and it also makes clear that the declaration and supporting affidavits should be filed and become a part of the files of the case. The language of the statute, however, does not require the declaration and supporting affidavits to be filed before or at the time the writ issues, but it does require that they “shall be filed.” Had the legislature intended that the filing of these papers should be a prerequisite to the validity of the writ, we think it would have so indicated in more appropriate and mandatory language. We are of the opinion that where the declaration and supporting affidavits are furnished the judge or commissioner who indorses the bail, and are returned and filed with the original writ after service, the requirements of the statute are substantially complied with.
The other ground upon which the court based his order was that the acts of defendants, which it is claimed constituted the libel, were not alleged as being sufficiently within the personal knowledge of the makers of the affidavits. It appears from the affidavits, in substance, that plaintiff is, and has been for several years, a minister of the gospel in the city of Detroit; that defendants were engaged in publishing and circulating a newspaper in the city of Detroit, called the “New Era,” and that certain newspaper articles which are alleged to be libelous, of and concerning the plaintiff, were published therein. These articles are then set out at length. It is further charged that the articles were untrue and libelous. It does not appear that the facts constituting the libel were peculiarly within the knowledge of any particular person, but on the other hand it does appear that the facts were common knowledge to those who knew the parties and had read the newspaper articles. The material facts constituting the tort are sworn to in the affidavits by persons purporting to have a knowledge thereof and must be held sufficient to support the issuance of the writs.
There are other questions discussed by plaintiff’s counsel, but inasmuch as these two questions were the only ones relied upon by the defendant in quashing the writs, and as no brief has been filed on behalf of defendant, we think further discussion is unnecessary.
The writ of mandamus will issue, if necessary, to compel the setting aside of said order.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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] |
Stone, J.
A petition was filed by the defendants praying for reasons therein set forth that they be permitted to discontinue payment of compensation to plaintiff, or applicant, herein. Those reasons will be referred to later herein. It appears that prior to and on July 14, 1920, the plaintiff was in the employ of the defendant Wadsworth Manufacturing Company, in the city of Detroit, which company’s principal business was the building of automobile bodies; that it was operating under the workmen’s compensation law, and the other defendant had been designated, with the approval of the industrial accident board, as the means of insuring said manufacturing company against the risks imposed upon it by the terms of said compensation law; and said General Accident, Fire and Life Assurance Corporation, Limited, was carrying the compensation risk of said manufacturing company.
That the plaintiff was on the day aforesaid employed by said defendant manufacturing company as a sub-foreman and final inspector in the finishing' department of said defendant’s plant. Plaintiff’s duties were to inspect the automobile bodies before the finish varnish coat was put on, and as such inspector it was his duty to carefully look the body over as it came through on a small truck, before it was attached to a chain conveyor, for any blemishes or marks, which it was his duty to remove with sandpaper or pull the body out of the line and haves one of the men assisting him do the work of repairing the blemish.
That because of the lighting conditions it was necessary to turn the body around for examination and inspection, which turning had to be done by pushing on the windshield. In the performance of this duty upon a body the windshield was broken and plaintiff’s right arm and wrist were severely cut and injured by the glass, the nature and extent of which injury was described in the agreement for compensation hereinafter referred to as follows:
“The flexor eorpi ulnoris tendon was completely severed, and also the ulnor artery muscles and facia were badly lacerated over two-thirds of distance across, lower forearm.”
Thereafter an agreement in regard to compensation, was entered into between the parties providing for the payment of compensation at the rate of $14 per week during total disability, and at a proper rate per' week during partial disability, if the employee should become legally entitled to compensation for partial disability,” which agreement, dated the 19th day of July, 1920, was filed with the industrial accident board, and approved by it.
Thereafter compensation as for total disability was paid to the 11th day of October, 1920. On the 13th day of October, 1920, defendants filed with said board-a petition to be relieved from further payments of compensation, and for such other and further relief as to the industrial accident board should seem just and proper. Said petition averred that after the date of the injury claimant returned to the Wadsworth Manufacturing Company in his capacity as foreman and performed his duties as such until on or about the 18th day of September, 1920, at which time by virtue of shop, conditions he was discharged from the employ of the Wadsworth Manufacturing Company. It was also stated in said petition that an operation to remedy a disability resulting from the injury was tendered to plaintiff and refused by him, under date of August 21, 1920. The relief prayed for was that upon hearing had compensation payments therein might be suspended until such time as claimant sub mitted to the operation tendered. And that defendants might be relieved' wholly from further payments of compensation in the case.
The plaintiff filed his answer to such petition, and testimony was taken in support of the various contentions of the parties. The findings of the industrial accident board were as follows, under date of January 8, 1921:
“(c) That said applicant was still disabled, in the employment in which he was engaged when injured, as a result of said injury, on October 11, 1920, the end of the period covered by the last payment of compensation in the case, and should continue to receive compensation in accordance with the terms of the approved agreement on file in the case.
“ (cl) That there is no reasonable assurance that the proposed operation, offered by respondents, on applicant’s injured arm will result in lessening applicant's ’disability or prove to be beneficial in any way, and that applicant’s refusal to undergo the said 'operation was not unreasonable.”
After determining the amount then due and payable, and directing payment thereof and of future compensation in accordance with the approved agreement, the finding concludes as follows:
“It is therefore ordered and adjudged that said petition should be and the same is hereby^ denied, and that said applicant is entitled to receive and recover from said respondents compensation in accordance with the above findings, receipts therefor to be filed forthwith, all in accordance with the provisions of the workmen’s compensation act.”
The case is here upon certiorari sued out by the defendants, who assign error upon the findings marked above respectively, “c” and “d”.
g. After a careful reading of the testimony we are satisfied that the board did not err in its finding marked “c”. There was testimony that the applicant was still disabled in the employment in which he was engaged when injured, as a result of the injury, on October 11, 1920, the end of the period covered by the last payment of compensation. It appeared that plaintiff when injured was a foreman and inspector, an employment requiring training, skill and judgment beyond that of a common laborer. Since the-injury he has not been able, by reason of such injury, to perform in full the duties he was performing at the time of the accident. These duties required, among other things, the use of both hands. Counsel for defendants state in their brief:
“In the instant case, it is not the contention of the respondents and petitioners that the forearm of Mr. Myers is in the same condition as it was before the date of the accident, and indeed it is conceded that there is an impairment in the function of the forearm.”
In our- opinion the case comes within, and is governed by, the cases of Foley v. Railway, 190 Mich. 507, and Jameson v. Newhall Co., 200 Mich. 514.
d. We are constrained, however, to differ with the industrial accident board in its conclusion and finding that there was. no reasonable assurance that the proposed operation, offered by the defendants, on plaintiff’s injured arm, would result in lessening plaintiff’s disability or prove to be beneficial in any way, and that plaintiff’s refusal to undergo an operation was not unreasonable.
The only medical testimony upon this subject was that of Dr. Condit, chief surgeon for the defendant General Accident Corporation. He first treated plaintiff under date of July 20th, continuing to treat him from time to tim,e until August 18th. It is true that Dr. Condit used the word “possibility,” but, taking his testimony as a whole, there can be no question, in our opinion, as to its meaning. The following occurred in his direct testimony:
“Q. Did you at that time make any suggestions to him, with reference to further treatment of his condition?
“A. Yes, we suggested at the time that there was a possibility of restoring the function of these flexor tendons by an operation, as soon as it was safe to do so, after the infection had cleared up. * * *
“Q. What with reference to improving the function of this hand, without operative treatment?
“A. I think there is very little chance for any improvement.
“Q. What, if anything, did you say to Mr. Myers, under date of November 3d, with reference to operative treatment?
“A. We advised him of the condition, and told him that there was a good chance of improving the function, if operated upon.
“Q. And did you tender such services?
“A. Yes we did. * * *
“Q. And what was said to that tender by Mr. Myers?
“A. As I remember, he refused to have it done, at least, at that time.
“Q. Has he afterwards appeared at the office and expressed his willingness to have it done?
“A. No, sir; I haven’t seen him since.
“Q. What risk or chance would the employee take by such contemplated procedure, considering the condition of his hand now, and the likelihood of regaining-function there?
“A. I do not think he would take any risk, not any more than the ordinary operative risk, which is practically nil, and the hand certainly would not be any worse, with a chance of being very much better.
“Q. And what, with reference to the seriousness of that operation, so far as injury to life is concerned?
“A. I' do not consider that there is any, to amount to anything.
“Q. Have you seen him subsequent to November 3d?
“A. No, sir; I don’t think so..
“Q. Did you at any time make any request of him that he appear for examination before any one else?
“A. Yes, sir. * '* *
“Q. And what was your request to him?
“A. That he go to some other surgeon and have his arm examined, and get the other surgeon’s opinion as to the advisability of doing anything with it.
“Q. Did you suggest whom that surgeon should be?
“A. I think I suggested Dr. Hall.
“Q. What is Dr. Hall’s given name?
“A. Dr. Archie C. Hall, in the David Whitney building.
“Q. And did you give' Mr. Myers his address?
“A. Yes, sir.”
On cross-examination the following appears:
“Q. Well, now, when you told Mr. Myers, or tendered this examination to him, is it a fact, Doctor, that you told him you did not know whether an operation would help him any, but in any event, it would not make the arm any worse — that it could not be made worse? Did you tell him that, or words to that effect?
“A. I told him — yes, I told him there was a good chance of getting some function in here, in this arm, but if it didn’t do him any good it wouldn’t do him any harm.
“Q. Well, Doctor, is that your opinion at the present time?
“A. Yes.
“Q. In other words, it is impossible to state whether an operation would be effective to restore the function of that arm?
“A. Yes, it is.
“Q. Now, is it a fact Doctor, that the leaders to the fingers, were they, at the time you examined him, severed from the forearm? — are there muscles, or what is called ‘leaders,’ I think the term is sometimes used — running from the forearm to each finger?
“A. There are.
“Q. Now did you discover whether or not they had been severed?
“A. Yes, they had. * * *
“Q. Now, an operation of this kind, isn’t it a fact, Doctor,, would be very painful, and he would suffer to a large extent?
“A. No pain at all.
“Q. Well, what would have to be done, would the arm have to be opened up?
“A. Surely, under an ansesthetic.
“Q. Well, the effect would be great pain and suffering would it not?
“A. No, very little.”
On redirect-examination the following appears:
“Q. Is it possible to suture nerves, the same as it is to suture muscles and tendons, Doctor?
“A. Yes, surely.
“Q. And to restore function in parts where heretofore function has been disturbed?
“A. Yes, sir.
“Q. That is not altogether uncommon is it, Doctor?
“A. No, it is done right along.”
It was shown that plaintiff had never appeared at, Dr. Hall’s office for examination.
There was no dispute disclosed by the testimony on. the question as to whether or not the expense of the operation would be borne by the defendants. From this undisputed testimony it clearly appears that the chances of success by an operation were very good. That an operation would not be accompanied by any considerable risk, nor would it be accompanied by any expense to the plaintiff. We think the testimony shows a reasonable ground to believe that improvement would follow the operation, but, of course, the doctor would not guarantee it.
The accident board found that Mr. Myers was disabled totally at the time of the hearing, and under Dr. Condit’s testimony it appears, we think, that no recovery will be had unless operative procedure is resorted to. The total disability for the period of 500 weeks at $14 a week amounts to $7,000. Is it reasonable to say that the refusal to submit to an operation, which in all probability will in no way result in detriment to the plaintiff, either physically or financially, is reasonable conduct of the plaintiff? We think not. We think it cannot be said, in the light of this uncontradicted testimony, that there was no reasonable assurance that the proposed operation would result in lessening plaintiff’s disability. When, as here, the employer offers to bear the cost of the operation and hospital treatment, in an operation of minor character, where there is a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, it seems to us it is the duty of’the plaintiff either to submit to an operation, or release his employers from the obligation to maintain him. As has been said:
"Sound public policy assuredly will not justify the capitalization of such injury for the drawing of a long disability pension, when by a relatively simple operation the injured person can in all probability be made sound.”
The following cases bearing upon this subject are familiar:
Jendrus v. Detroit Steel Products Co., 178 Mich. 265 (L. R. A. 1916A, 381, Ann. Cas. 1915D, 476); Ramlow v. Moon Lake Ice Co., 192 Mich. 505 (L. R. A. 1916F, 955); Kricinovich v. Foundry Co., 192 Mich; 687; Poniatowski v. Stickley Bros. Co., 194 Mich. 294; O’Brien v. Albert A. Albrecht Co., 206 Mich. 101.
The Kricinovich and O’Brien Cases are particularly applicable to this case. In the former Mr. Justice Kuhn, speaking for this court, said:
"Before the defendant is to be charged, in law or morals,' with the duty to compensate him, the claimant should first discharge the primary duty owing to himself and society to make use of every available and reasonable means to make himself whole. This, in our opinion he has not done, and the defendant seems fa have discharged the burden of proving the claimant’s refusal to submit to the operation to relieve him, is unreasonable.”
In the O’Brien Case Mr. Justice Fellows, after stating the facts, said:
“We appreciate the timidity with which the average person contemplates an operation, minor as well as major. But we also appreciate that in thousands of cases, operations, many of them of but minor degree, have restored incapacitated men to the army of wage earners, and put them in position to discharge their duty to their dependents, themselves, and to society. We are impressed that under the undisputed evidence in the case it was the plaintiff’s duty to accept the tendered operation."
Lesh v. Illinois Steel Co., 163 Wis. 124 (157 N. W. 539, L. R. A. 1916E, 105), is an interesting case upon this subject.
It follows that the accident board erred in continuing compensation after defendants filed their petition to stop compensation until the claimant should submit to an operation. The order of the board denying the defendants’ petition is reversed, and plaintiff should not be allowed further compensation until he submits to an operation. The case will be remanded for such proceedings as may be had not inconsistent with this opinion.
Steere, C. J., and Moore, Wiest, Fellows, Bird, and Sharpe, JJ., concurred. Clark, J., did not sit. | [
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Per Curiam.
Plaintiffs decedent, Gregory Michael Jenkinson, drowned while wading at the Bald Mountain State Recreation Area public beach. The recreation area is owned and operated by defendant State of Michigan Department of Natural Resources. On May 7, 1981, plaintiff filed this action against the dnr alleging that plaintiff’s decedent’s death was the direct and proximate result of defendant’s negligence. On July 28, 1981, the Court of Claims denied defendant’s motion for summary judgment under GCR 1963, 117.2(1), now MCR 2.116(C)(8). Subsequently, on October 31, 1985, the court granted defendant’s motion for summary disposition under MCR 2.116(C)(7) on the basis that plaintiffs claim was barred by governmental immunity, MCL 691.1407; MSA 3.996(107), and by the recreational use statute, MCL 300.201; MSA 13.1485. Plaintiff appeals as of right. We hold that the action against the dnr is barred by both statutes and, therefore, affirm the decision of the Court of Claims.
In order to plead a valid claim against a government agency, the plaintiff must plead facts in avoidance of governmental immunity. McCann v Michigan, 398 Mich 65, 77; 247 NW2d 521 (1976). This is accomplished by stating a claim which fits within one of the legislatively or judicially created exceptions to governmental immunity or by pleading facts which demonstrate that the activity alleged is not in the "exercise or discharge of a governmental function” within MCL 691.1407; MSA 3.996(107). McCann, supra; Veeneman v Michigan, 143 Mich App 694, 698; 373 NW2d 193 (1985), lv gtd 424 Mich 876 (1986).
In the instant case, plaintiff contends that the operation of a swimming beach is not a governmental function subject to immunity. See Feliciano v Dep’t of Natural Resources, 97 Mich App 101; 293 NW2d 732 (1980). We find that Feliciano, which was decided prior to the Supreme Court’s decision in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), was effectively overruled by Ross. In Ross, the Court adopted the following definition of "governmental function”:
We therefore conclude that a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature (as defined in § 13) or falls within one of the other statutory exceptions to the governmental immunity act. [Ross, supra, p 620.]
In this case, the state’s operation of Bald Mountain Recreation Area is an activity which is expressly mandated or authorized by statute. MCL 318.3 et seq.; MSA 13.1011 et seq. See also Const 1963, art 10, § 5 and MCL 299.3; MSA 13.3, which provides that the dnr shall provide outdoor recreational facilities. The recreational activity at issue here is clearly not proprietary in nature and does not come within any of the statutory exceptions to governmental immunity. We therefore conclude that plaintiff’s claim against the state is barred by governmental immunity. Contrary to plaintiff’s assertion, Ross has limited retroactive effect and is applicable to this case. Hyde v University of Michigan Bd of Regents, 426 Mich 223, 230; 393 NW2d 847 (1986).
Nor do we find plaintiffs claim under the recreational use statute, MCL 300.201; MSA 13.1485, a viable one. That statute provides:
No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.
The recreational use act has been held to be applicable to publicly owned lands. Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982); Graham v Gratiot Co, 126 Mich App 385; 337 NW2d 73 (1983); Lucchesi v Kent Co Road Comm, 109 Mich App 254; 312 NW2d 86 (1981); Syrowik v Detroit, 119 Mich App 343; 326 NW2d 507 (1982); McNeal v Dep’t of Natural Resources, 140 Mich App 625; 364 NW2d 768 (1985). In the instant case, plaintiffs complaint failed to allege or even plead defendant’s gross negligence or wilful and wanton misconduct. Hence her claim under this statute must fail. See, e.g., Matthews v Detroit, 141 Mich App 712; 367 NW2d 440 (1985), lv den 422 Mich 978 (1985).
Finally, plaintiffs claims that the nuisance and public buildings exceptions are applicable to this case are without merit. Although plaintiff contends in her brief on appeal that she sought leave to amend her complaint in the lower court to allege intentional nuisance and the public buildings exception, the lower court record lacks any papers or hearing transcripts to support this. We find that, since plaintiff did not properly raise her claims below, appellate review is precluded. S S Development Co v Pants Galore Stores, Inc, 63 Mich App 394, 397; 234 NW2d 540 (1975).
Affirmed.
Paragraph 14 set forth six specific acts of defendant’s negligence: (a) failing to hire an adequate number of lifeguards; (b) allowing an excessive number of patrons in the beach area; (c) failing to promptly and effectively search for the plaintiff’s decedent following a report of his disappearance; (d) failing to maintain a safe beach area so that sudden dropoffs would not pose a threat of harm to young nonswimmers; (e) failing to properly warn, instruct and caution young non-swimmers; and (f) failing to maintain a cordoned-off area for young nonswimmers so that they would not be exposed to deep water.
MCL 691.1402; MSA 3.996(102), MCL 691.1405; MSA 3.996(105), MCL 691.1406; MSA 3.996(106), and MCL 691.1413; MSA 3.996(113). | [
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] |
W. R. Peterson, J.
Defendant was charged with kidnapping and with multiple counts of first-degree criminal sexual conduct in Iron and Marquette Counties. The matters having arisen from the same event, they were consolidated for trial. Defendant appeals his jury conviction of two counts of esc i, one in each county.
On February 28, 1981, the victim was abducted in the City of Marquette when defendant seized her as she was leaving a grocery store and forced her into the back of an automobile driven by Kenneth Gray. The automobile was driven for some time, during which the victim was sexually abused and raped by both defendant and Gray. They arrived at another city, which proved to be Iron River. There the victim was blindfolded and led into a house where she was kept overnight and subjected to further rapes by defendant.
On the following morning, the victim was led blindfolded to a different car (Gray’s) and driven some distance. During that drive defendant again forced the victim to have intercourse. The victim was then released along the road and hitchhiked back to Marquette where she went to the hospital.
Defendant’s testimony was that the victim had joined him and Gray voluntarily, that she spent the night with him voluntarily, and that the various sexual events were all consensual.
Gray, who was originally charged with defendant, was sentenced in January, 1982, to a term of fifteen to fifty years in an unrelated case. He then accepted an offer from the prosecuting attorney to be allowed to plead guilty to a kidnapping count with a sentence recommendation of seven to thirty years in return for his testimony in the trial of defendant. His testimony corroborated that of the victim.
The victim was able to describe Gray’s car accurately to the police. She had also seen the license plate, but could not say what all the letters were. On March ll, in the hope that hypnosis might help the victim recall the complete lettering of the license plate, she was hypnotized and reinterviewed. The effort was not successful.
Defendant was arrested on March 12, 1981, and the matter progressed through pretrial conferences, various motions, the release of defendant on a reduced bond, the consolidation of the Iron County charges with those in Marquette, and severance of the cases of defendant and Gray. Defendant’s trial was scheduled for November 30, 1981. In the interim, on July 28, 1981, People v Gonzales, 108 Mich App 145; 310 NW2d 306 (1981), involving hypnosis of a witness, was decided. On November 25, 1981, at an in-chambers conference, defense counsel raised the Gonzales question. Various agreements were reached, namely that the trial date would be postponed, that defendant would move to suppress the testimony of the victim under the authority of Gonzales, that a record would be made of the facts surrounding the hypnosis of the victim, that the court would certify the matter to the Court of Appeals if the motion to suppress was denied, and that defendant and Gray would then seek interlocutory appeals on the issue.
The court did deny the motion to suppress on December 14, 1981, but then things hastened to a halt. Gray eventually did file an application for leave to file a delayed appeal of the suppression order in his case, but defendant never undertook the interlocutory appeal. Almost a year later, on November 24, 1982, a memorandum order was filed by the Court of Appeals which indicated that the assistant prosecuting attorney and defense counsel agreed that the case would be adjourned pending Court of Appeals action on Gray’s application, and that defendant would waive any speedy trial claim as to delay attributable to the resolution of the hypnosis issue.
With somewhat greater dispatch, Gonzales had made its way to the Supreme Court, which held on December 23, 1982, "the testimony of witnesses which has been tainted by hypnosis must be excluded in criminal cases.” 415 Mich 615, 627; 329 NW2d 743 (1982). Based thereon, on January 25, 1983, the trial court granted the defendant’s motion to quash and suppressed the testimony of the victim in future proceedings in the matter.
On April 25, 1983, the Supreme Court on its own motion amended its opinion in Gonzales to add this language:
This opinion should not be read as determining the question of the admissibility of this witness’s testimony concerning facts she was able to recall and relate prior to hypnosis, a question which is reserved until raised on an adequate record in an appropriate case. [415 Mich 627.][ ]
The prosecutor eventually became aware of this addendum to Gonzales and, on July 18, 1983, filed a motion for reconsideration of the trial court’s January 25, order. On July 29, 1983, the trial court vacated its January 25, order, denied the motion to quash, and ordered that the victim be allowed to testify "to the extent of her memory of the event prior to any hypnotic session.”
Defendant first contends that it was error for the trial court to reconsider its earlier order quashing the information, arguing that such was an improper retroactive application of the "second” Gonzales opinion (April 25, 1983) and that defendant was entitled to trust and rely on the first Gonzales opinion (December 23, 1982) citing People v Nixon, 421 Mich 79, 88; 364 NW2d 593 (1984), in which the Court held that Gonzales was applicable to "cases tried after the date of that decision and those cases pending on appeal which raised the issue.” The fallacy, of course, is to speak of a Gonzales I and Gonzales II, for there are not two separate decisions but only one in Gonzales.
In Nixon, the Court also resolved the question left open in Gonzales, holding that a witness could testify about matters recalled prior to hypnosis, but added:
In order to ensure that the witness’ trial testimony is based solely on facts recalled and related prior to hypnosis, we hold that the party offering the testimony must establish its reliability by clear and convincing evidence. In this regard, we commend for examination the standards articulated in Collins [State v Collins, 132 Ariz 180; 644 P2d 1266 (1982)], and Hughes [People v Hughes, 59 NY2d 523, 546-548; 466 NYS2d 255; 453 NE2d 484 (1983)].
Citing Nixon, defendant contends that, even if it was appropriate for the trial court to reinstate the charges against defendant, the court nonetheless erred in allowing the victim to testify without a pretrial hearing to determine whether the victim’s prehypnosis testimony was reliable.
People v Hughes, cited in Nixon, discussed two different stages for testing prehypnotic recollection of the witness, one as to competency, and one as to weight. The first step according to Hughes is the determination of the competency of the witness to give testimony, in which determination the proponent of the testimony has the burden of proving its reliability by clear and convincing evidence.
Here, going to trial before Nixon was decided, neither court nor counsel could know that this test would be adopted; they only knew that Gonzales had left open the question of the admissibility of the testimony of a hypnotized witness as to facts recalled and related prior to hypnotism. Defendant elected to reserve that question by asking for a posttrial hearing thereon in the event his client should be convicted, and waived the presence of the hypnotist at trial. We find no abuse of discretion on the part of the trial judge as to the timing of the consideration of the admissibility of the victim’s testimony when he followed the procedure requested by defense counsel. Neither can we say that the trial judge abused his discretion as to the conclusion reached in denying the motion to suppress. Here, as in Nixon, the hypnotic session was not suggestive, and defense counsel had been furnished with the prehypnotic interviews with the victim and a transcript of the hypnotic session. The hypnotic session was held before the police had any suspects and the focus of the hypnotic session was as to the letters on the license plate of the car from which the victim was released, in which regard the hypnosis failed to develop further recollection on the part of the victim.
Defendant also claims that error occurred when the prosecution improperly introduced evidence that the accomplice, Gray, entered a guilty plea in the case, citing People v Lytal, 415 Mich 603; 329 NW2d 738 (1982). In the course of direct examination, the prosecuting attorney elicited from Gray the terms of the plea bargain noted above, to which testimony defendant made no objection.
Once again we see an effort by the prosecution to comply with People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), and People v Woods, 416 Mich 581; 331 NW2d 707 (1982), apparently running afoul of Lytal. In Atkins, the Court dealt with the problems of making the jury aware of the inducements given to obtain the testimony of an accomplice so that the jury could intelligently consider the credibility of the accomplice. The opinion of Justice Fitzgerald, joined by Justices Coleman, Williams and Kavanagh, said:
Where an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, it is incumbent upon the prosecutor and the trial judge, if the fact comes to the court’s attention, to disclose such fact to the jury upon request of defense counsel. [397 Mich 173.]
Subsequently, in Woods, the Court, citing that language, added the requirement that the consideration given should be made a matter of proof as distinguished from a statement thereof by the prosecuting attorney. 416 Mich 602.
One of the difficulties imposed on bench and bar by this language lies in its apparent limitation of disclosure to cases where it is requested by defense counsel, a condition repeated in People v Standifer, 425 Mich 543; 390 NW2d 632 (1986). The problem arises because the quoted language, repeated in Woods and Standifer, may not be that of a majority of the Atkins Court. Atkins was a five-justice decision and the appearance of three other signatures with that of the author of the quoted language would seem to clearly establish the ruling. The rub is that two of the signers of the Fitzgerald opinion, Justices Williams and Kavanagh, also signed the concurring opinion of Justice Levin which does not condition such disclosure on the demand of defense counsel. Thus, three of the five justices seemingly state an affirmative obligation on the prosecution to disclose without regard to a request from the defense.
Subsequently, People v Lytal said that it was error to introduce evidence at trial of the conviction of an accomplice and said vis-á-vis the disclosure requirement of Atkins:
The prosecutor is only obliged to disclose any consideration offered to or received by the witness. That can be done without adverting to whether the witness was, if charged, convicted. [415 Mich 612.]
When it is the plea itself which is the consideration, how it can be disclosed without adverting to it is something of a dilemma to the trial bench and bar. The statement, although only dictum given the facts of the case, has been a matter of frequent concern, particularly since it appeared to be an overbroad statement based on distinguishable precedents.
In People v Standifer, supra, six members of the Court addressed the issue, again with less than decisive result. Justice Boyle, joined by Justices Williams and Brickley, sought to construe Lytal narrowly to a holding that conviction of an accomplice by trial was inadmissible where the accomplice was thereafter a witness and had been given no inducement by the prosecution to testify. Justice Levin, joined by Justice Kavanagh, proposed to give the dictum of Lytal full application, a view seemingly endorsed by Justice Riley, who concurred with the opinion of Justice Boyle solely on the ground that no manifest injustice resulted to the defendant. " 'Would you tell me please,’ said Alice, 'what that means?’ ”
We adhere to the view expressed by the opinion of Justice Boyle in Standifer that it is not error to put into evidence a plea given by a testifying accomplice pursuant to a bargain with the prosecution. And, in any event, given the testimony of both the victim and Gray as to Gray’s involvement, we cannot conceive of any way in which defendant could have been prejudiced by the jury’s learning that Gray had entered a guilty plea because of his complicity in the case. In Standifer, the Court said that, if proof of such a plea was error, it would, absent objection below, be reviewed by the manifest injustice test. Even if we disagreed with the view taken by Justice Boyle in Standifer as to the application of Lytal, we could find no manifest injustice here.
Defendant also argues that the prosecuting attorney was guilty of misconduct by making an inflammatory closing argument which deprived defendant of a fair trial. He points to a single incident wherein the prosecutor politely referred to defendant’s testimony as horse manure. He did so in the course of telling the jury that it was for the jury to decide who was telling the truth, and he then went on to compare the testimony of defendant to the other evidence in the case. There is absolutely no reason why a prosecuting attorney may not, in advocating his cause, point out the incredibility of a defendant’s testimony when analyzing the evidence and describe that incredibility in the terminology customarily employed for that purpose. People v Cowell, 44 Mich App 623; 205 NW2d 600 (1973); People v Couch, 49 Mich App 69; 211 NW2d 250 (1973). As the Court said in Couch: "In essence the prosecutor translated into layman’s terms many of the concepts [of credibility] just discussed.” 49 Mich App 73. Here the translation was crude but not improper. That the prosecutor apologized to the jury was not an admission of misconduct; his apology was for the simile employed and not for the logic of his argument.
Defendant also contends that his constitutional right to a speedy trial under US Const, Am VI, and Mich Const 1963, art 1, § 20, was violated by the delay in bringing him to trial. The length of the delay, more than forty-three months from arrest to trial, is presumptively prejudicial. People v Den Uyl, 320 Mich 477; 31 NW2d 699 (1948); People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972); People v Collins, 388 Mich 680; 202 NW2d 769 (1972); Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). Under Barker, that presumptively prejudicial delay triggers inquiry into other factors to be considered in the balancing of the competing interests to determine whether the accused has been deprived of his right to a speedy trial. 407 US 531; People v Missouri, 100 Mich App 310, 320; 299 NW2d 346 (1980); People v Ross, 145 Mich App 483, 490; 378 NW2d 517 (1985); People v Chism, 390 Mich 104; 211 NW2d 193 (1973).
The progression of defendant’s case included these significant events:
March 12,1981 Defendant arrested.
June 8, 1981 Defendant’s bond reduced, enabling release.
November 25, 1981 The parties stipulated to adjourn the matter pending interlocutory appeal of hypnosis issue.
November 24, 1982 Defendant having failed to pursue an appeal, the parties again stipulated to adjourn pending such appeal and defendant waived speedy trial claim.
December 23, 1982 Opinion filed in People v Gonzales, 415 Mich 615.
February 1, 1983 The order quashing the information based on Gonzales is filed. (Note: Defendant’s brief concedes that he is responsible for the period of delay from November 25, 1981, until February 1, 1983.)
July 18, 1983 Prosecutor moved for reconsideration.
August 23, 1983 Order granting prosecutor’s motion is filed.
November 2,1983 Defendant moved to dismiss, claiming denial of speedy trial.
January 23, 1984 Defendant’s motion to dismiss denied.
February 6, 1984 Pretrial conference at which defendant represented that an interlocutory appeal would be pursued.
April 13, 1984 Defendant having failed to pursue an interlocutory appeal, a trial date was scheduled for June 4, 1984.
June 4, 1984 Defendant filed application for delayed leave to appeal.
July 12, 1984 Application for leave to appeal denied. (Note: Defendant’s brief concedes that he is responsible for the delay from February 6, 1984, until July 12, 1984.)
August 3, 1984 Pretrial conference, with trial date of October 29, scheduled.
October 29, 1984 Trial commenced.
As noted, defendant concedes that he is responsible for almost twenty months of the delay by reason of his own conduct. While he contends that the delay during the period of time between the quashing of the information and the subsequent reversal of that order should be attributed to the prosecution, we do not believe that the delay during that period should be attributed to either side, since there was, in effect, no charge pending against defendant during those seven months.
Looking, then, to the SVi-month period in 1981 between defendant’s arrest and the stipulation to adjourn the matter pending appeal, we find no unusual delay for which either party may be faulted. After defendant was bound over, a number of pretrial conferences were held and a number of motions were made by each side as they prepared for trial of the multiple charges in one venue. Such delay was inherent in the complexity of the matter and the orderly resolution thereof; it is given a neutral tint and is assigned only minimal weight in determining whether defendant was denied a speedy trial. People v Goode, 106 Mich App 129; 308 NW2d 448 (1981), Iv den 413 Mich 866 (1982).
After the reinstatement of the matter on August 23, 1983, fourteen months elapsed until trial. The record seems to indicate that defendant did not want a speedy trial and that his motion to dismiss because of a claimed denial of speedy trial was another dilatory tactic to put off the day of reckoning. Having been responsible for much of the delay prior to the order quashing the information, his speedy trial motion, filed shortly after the order reinstating the charges, seems patently frivolous. Only the 2ti-month delay of the trial court in ruling on the motion was inexplicable. After the trial court denied the motion, defendant was responsible for the next delay (as conceded in his brief herein) from February 6 until July 12, 1984. Thereafter, the matter pursued a timely course to trial 3Vi-months later, another neutral period to be given only minimal weight.
The forty-three months from arrest to trial, while appearing on its face to be an intolerable delay, is thus seen as a relatively reasonable period given the delays attributable to defendant.
We have already touched on another factor to be considered, the defendant’s assertion of the right to a speedy trial, our comments making it clear that we do not find it to be a significant factor herein. We add to those comments only this brief observation: If the failure to assert the right to a speedy trial is weighed heavily against a subsequent claim of denial thereof, so too must the conduct of an accused inconsistent with and evidencing the insincerity of the claim which he has made. Defendant cannot have it both ways.
Neither do we find that defendant has suffered any prejudice from the delay herein. It may be that he suffered some anxiety from the pending charges, but that is of minimal importance in the scale of things when weighed against the offenses charged. We note that defendant was not subjected to an oppressive pretrial incarceration, having been released on bond early on in the proceedings. Thus, as noted in Barker v Wingo, supra, 407 US 532, the most serious inquiry is whether the delay has impaired defendant’s defense. Defendant has made the bald assertion of such prejudice but has been unable to suggest any way in which his ability to challenge the prosecution’s case or to marshal his own defense of consent has been harmed.
We conclude that the factors to be considered under Barker v Wingo, supra, indicate no denial of defendant’s right to a speedy trial.
Defendant also claims that there are res gestae witnesses who were not endorsed or called at trial. The question was not raised in the trial court and, while defendant may yet raise that question in the trial court by motion for new trial, it is not properly before us on this appeal. People v Robinson, 390 Mich 629; 213 NW2d 106 (1973); People v Pearson, 404 Mich 698; 273 NW2d 856 (1979).
Affirmed.
D. E. Holbrook, Jr., J., concurred in the result only.
She recalled the lettering on the plate as including xy and the number as 540.
The victim was interviewed by police on March 1, 2, 5, and 6, during which interviews she gave descriptions of her assailants and descriptions of places, drove with officers to various places and took a polygraph examination successfully. Her story was consistent, but she never could give the complete lettering on the license plate.
At that date, Gray’s application for leave to file a delayed appeal had neither been accepted nor rejected by the Court of Appeals.
It appears from the file that the order was so drafted in contemplation of remand to the district court for further preliminary examination to determine if probable cause could be established without the testimony of the victim.
The question so reserved was decided in People v Nixon, 421 Mich 79; 364 NW2d 593 (1984), allowing the admission of such testimony.
Gonzales did not involve two separate decisions, nor even a rehearing. Rather, the Court merely took pains by its addendum to make clear the scope of its decision on the facts of the case.
Assuming that a witness is found competent to testify, the second stage is merely the opportunity, available as to any kind of evidence, of one litigant to challenge, by whatever means might be appropriate, the quality of an opponent’s evidence.
If the witness is held to be competent to testify, the defendant, of course, has the option at trial of introducing proof with respect to hypnotic procedures followed as well as expert testimony concerning the potential effect of the hypnosis on the witness’s recollections. [People v Hughes, 59 NY2d 547-548.]
Competency is a preliminary question for the court. MRE 104.
Defendant seems to have made a tactical choice to keep the fact of hypnosis from the jury. If so, that strategy, even in hindsight, does not seem unreasonable. It was a choice made after defense counsel had been furnished with the prehypnotic interviews with the victim and a transcript of the hypnotic session and was not an uninformed choice. Evidence that the victim had been hypnotized, and, particularly, evidence that the victim had been consistent in her prehypnotic statements might well have impressed the jury favorably about her testimony.
Indeed, defendant subsequently offered into evidence the letter by which the prosecutor extended the offer of the agreement to Gray.
In Woods, supra, the Court did not address the question although the record shows that the consideration given by the prosecution was a plea to a lesser charge.
See People v Buschard (On Remand), 129 Mich App 160; 341 NW2d 260 (1983), lv den 419 Mich 895 (1984); People v Horsfield, 132 Mich App 56; 347 NW2d 6 (1984); People v Allen, 424 Mich 109; 378 NW2d 481 (1985).
Thus the author of Lytal cites as authority his concurring opinion in People v Crawl, 401 Mich 1; 257 NW2d 86 (1977), a case in which all of the other members of the Court, in two opinions, said there was no merit to that issue. And see the discussion in People v Standifer, supra.
Lewis Carroll, Through the Looking-Glass and What Alice Found There. The question by Alice arises in response to Humpty Dumpty’s explanation of the nature of words and his mastery of those words.
We also note that defendant made no objection to the prosecutor’s offer of the evidence in question and, indeed, expanded thereon by introducing the prosecutor’s correspondence regarding the plea agreement as an exhibit. "Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.” People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969).
A formal charge against, or restraint of, the accused is necessary to call the right to speedy trial into play. United States v Marion, 404 US 307; 92 S Ct 455; 30 L Ed 2d 468 (1971).
See People v Collins, 388 Mich 680, 693-694; 202 NW2d 769 (1976); People v Ovegian, 106 Mich App 279, 284; 307 NW2d 472 (1981).
The record shows that codefendant Gray promptly took steps to appeal the reinstatement and it appears that defendant was content to do nothing and try for a free ride with Gray’s efforts.
People v Hammond, 84 Mich App 60; 269 NW2d 488 (1978); People v Bailey, 101 Mich App 144; 300 NW2d 474 (1980). | [
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Per Curiam.
In Docket No. 90258, plaintiff Sov ran Bank, N.A., appeals from an order of summary disposition entered in favor of defendant. In Docket No. 90681, Sovran appeals from a subsequent order of summary disposition dismissing a prior claim and an order denying Sovran’s motion for reconsideration. The cases have been consolidated on appeal.
On June 2, 1975, the Oakland Circuit Court entered a consent judgment in favor of Virginia National Bank against defendant. On February 13, 1985, the judgment not having been satisfied, Virginia National Bank, operating under its new name, Sovran Bank, N.A., filed a claim in Oakland Circuit Court to renew the judgment (first Michigan case). The summons and complaint were served on defendant in Florida on February 25, 1985. In his answer, defendant alleged lack of personal jurisdiction because he had not been served with process in Michigan nor resided in Michigan for many years.
On May 6, 1985, plaintiff filed a complaint against defendant in Florida (Florida case). Defendant was served with a summons and a copy of the complaint on May 10, 1985.
Since defendant had asserted lack of personal jurisdiction in the first Michigan case, plaintiff moved for permission to issue a second summons. The motion was denied and on August 30, 1985, plaintiff filed a second complaint in Oakland Circuit Court (second Michigan case). Defendant was personally served in Michigan with a summons and complaint on September 1, 1985.
On November 6, 1985, a hearing was held in Oakland Circuit Court on defendant’s motions for summary disposition of the first and second Michigan cases. The trial court issued an order dismissing the second Michigan case with prejudice pursuant to MCR 2.116(C)(6) and indicating that the first Michigan case would be dismissed if the Florida case was not dismissed with prejudice on or before December 20, 1985.
Proceedings pursuant to defendant’s motion for entry of the order were held on January 8, 1986, during which time it was ascertained that the Florida case had not been dismissed. Accordingly, an order dismissing the first Michigan case was issued on January 29, 1986.
Plaintiff contends on appeal that the trial court erred in dismissing the second Michigan case on the grounds that there were other cases pending in Michigan and Florida courts. Although at first blush it appears that dismissal of the second Michigan case would have been proper under the court rule, we find that it was erroneous in this instance.
MCR 2.116(C)(6) provides that a motion for sum: mary disposition may be based on the fact that "[ajnother action has been initiated between the same parties involving the same claim.” The court rule is a codification of the former plea of abatement by prior action. See Rene J DeLorme, Inc v Union Square Agency, Inc, 362 Mich 192; 106 NW2d 754 (1961); Chapple v National Hardwood Co, 234 Mich 296, 297; 207 NW 888 (1926); Ross v Onyx Oil & Gas Corp, 128 Mich App 660, 666; 341 NW2d 783 (1983). Its purpose is to protect parties from the harassment of new suits involving the same questions as those in pending litigation. Chapple, supra, p 298; Ross, supra.
A review of the three different complaints in these cases establishes that the respective actions involve the same parties and claim. However, our analysis does not end there.
The pending Florida case would not support dismissal under the court rule. A court does not lose jurisdiction by reason of the pendency of litigation covering the same subject matter in a court of another state. Owen v Owen, 389 Mich 117, 120, n 2; 205 NW2d 181 (1973), cert den 414 US 830 (1973), reh den 414 US 1086 (1973); In re Elliott’s Estate, 285 Mich 579, 584; 281 NW 330 (1938). Nor does a suit pending in another state or foreign jurisdiction constitute a prior action subjecting the subsequent suit to a plea in abatement. McKey v Swenson, 232 Mich 505, 516; 205 NW 583 (1925); Hoover Realty v American Institute of Marketing Systems, 24 Mich App 12, 16-17; 179 NW2d 683 (1970), lv den 384 Mich 754 (1970). See also 1 Am Jur 2d, Abatement, Survival and Revival, § 10.
Whether the pending first Michigan case would justify dismissal of the second Michigan case is less certain. No Michigan authority addresses the issue of applicability of the rule where jurisdictional questions are present in the pending litigation. Other jurisdictions have held, as a general rule, that a first suit is not ground for abatement of a second where the court does not have jurisdiction of the parties. 1 Am Jur 2d, Abatement, Survival, and Revival, § 16. However, the reasonable rule is that the plea in abatement or motion should be sustained unless the first suit is wholly abortive on its face. Id., § 16, p 55, n 3.
In the instant case, the first suit is not wholly abortive on its face. In McGraw v Parsons, 142 Mich App 22; 369 NW2d 251 (1985), lv den 423 Mich 860 (1985), this Court held that an action on a judgment, whether pursuant to a new complaint or a writ of scire facias, will be deemed to be a continuation of the original action such that jurisdiction is proper in the court which rendered the original judgment. Id., p 25. Prior to McGraw, no Michigan case had addressed the issue whether a Michigan court had jurisdiction over a defendant in such an action where the defendant had been served with process outside Michigan. Id., pp 24-25.
On the basis of McGraw, the lower court reasonably could have concluded that the jurisdictional question would be resolved in plaintiff’s favor. Accordingly, summary disposition pursuant to the court rule arguably was proper. On the other hand, there remains some measure of speculation. We note the fact that jurisdiction in the second Michigan case was obtained by service on defendant in Michigan. Assuming that jurisdiction was denied in the first Michigan case, that dismissal of the second Michigan case was granted prior to this determination and that plaintiff was subsequently allowed to refile its claim, plaintiff would be unable to do so unless defendant again returned to Michigan. There is, of course, no guarantee that this would occur. Thus, dismissal prior to the actual resolution of the jurisdictional question potentially could prevent plaintiff from ever being able to adjudicate the claim in this state.
We find that the more appropriate action would have been to stay proceedings pending resolution of the jurisdictional question. In Ross, supra, this Court stated:
"Where the rights of parties to the second action cannot be properly determined until the questions raised in the first action are settled the second action should be stayed.” [Id., p 670, quoting 1 Am Jur 2d, Actions, §§ 92-94, pp 621-622.]
Plaintiff’s right to proceed with the second Michigan case depended upon whether or not jurisdiction properly existed in the first Michigan case. If jurisdiction existed, dismissal of the former would then be proper. If not, plaintiff would still be free to pursue the matter in a Michigan court.
We agree with plaintiffs contention that dismissal of the first Michigan case on the basis that the Florida case was still pending was improper. Although the doctrine of abatement arguably could support dismissal of the Florida case, since it was filed subsequent to the first Michigan case, there is no authority to support dismissal of the first Michigan case under the same rationale. Moreover, as plaintiff correctly asserts, in such an instance it would be impossible for a defendant to raise such a defense pursuant to MCR 2.116(D)(2), since defendant could have no way of knowing that such a subsequent suit would be filed. Finally, the pendency of the Florida case would be irrelevant for purposes of the rule since it is in another jurisdiction. Owen, supra; In re Elliott’s Estate, supra.
The lower court’s reliance on the doctrine of comity is also misplaced. Jurisdiction remains concurrent until final judgment. Only then may one action be set up in bar of the other. McKey, supra, p 516.
The only possible basis for the lower court’s action in dismissing the first Michigan case is a theory of election. In Battle v Battjes, 274 Mich 267; 264 NW 367 (1936), the Michigan Supreme Court held that the rule that a suit pending in another jurisdiction does not abate an action in Michigan until final judgment would not apply where plaintiff has made an election, both of remedy and of forum. Id., p 280. However, Battle is inapposite since election only occurs where the remedies are inconsistent. Where remedies are consistent with each other, no election occurs until judgment is entered or satisfaction had. Id.
A review of the respective complaints establishes that the only difference between the two is the date and the court in which filing took place. Therefore, it cannot be said that the remedies are inconsistent. Dismissal of plaintiffs first Michigan claim, under a theory of election, was therefore improper.
In view of our above conclusions it is unnecessary to review plaintiffs remaining allegations of error.
In conclusion, we hold that the lower court’s dismissal of plaintiffs first Michigan case should be reversed and the case remanded for resolution of the jurisdictional question raised and potential adjudication on the merits. The lower court’s dismissal of the second Michigan case should be reversed, remanded and stayed pending resolution of the jurisdictional question presented in the first Michigan case. Should the jurisdictional question be resolved in favor of plaintiff, dismissal with prejudice would then be proper. Should the jurisdictional issue be resolved in defendant’s favor, defendant’s motion for summary disposition of the second Michigan case pursuant to MCR 2.116(C)(6) should be denied since there would no longer be any pending Michigan action to bar the claim.
Reversed and remanded for proceedings consistent with this opinion. | [
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R. M. Maher, J.
Defendant appeals as of right from the October 15, 1985, order of the Wayne Circuit Court denying his petition for a change of custody as to the minor child, Marlena McRipley.
Plaintiffs in this case, Norman and Lorraine Glover, are the maternal grandparents of the minor child.
Married in February of 1977, defendant and Norma Jean McRipley (Glover) were separated in August of 1977. At that time, Norma Jean was pregnant and went to live with her parents, plaintiffs to this action. Marlena, the minor child, was born on September 6, 1977. Thereafter, Norma Jean continued to reside with her parents.
In November of 1978, defendant and Norma Jean McRipley were divorced. Custody of the minor child was awarded to the mother, Norma Jean, in the judgment of divorce. Defendant was awarded visitation rights.
On February 8, 1980, Norma Jean was murdered and Marlena remained in the custody of her grandparents. Defendant petitioned the Oakland Circuit Court for custody of Marlena and, on March 12, 1980, obtained an ex parte order for custody in the Oakland County divorce action. Meanwhile, plaintiffs had petitioned Wayne Circuit Court for custody as well. On May 30, 1980, the parties entered into a consent agreement permitting plaintiffs to retain custody and granting defendant visitation rights. At that time, defendant was a student at Thomas M. Cooley Law School in Lansing, Michigan.
In May of 1981, defendant filed a motion for change of custody, alleging that he had entered into the consent agreement because of improper advice from his attorney. After hearing the arguments, the circuit court ordered that plaintiffs have custody of Marlena until she attained eighteen years of age or until further order of the court. The court reserved for defendant an absolute right to petition the court at a later time for a rehearing on the custody issue.
Defendant then filed another petition for change of custody in August of 1984. Pursuant to that petition, an evidentiary hearing was held before a circuit court referee. It was the referee’s recommendation that custody be awarded to defendant. Plaintiffs filed an objection and the matter was scheduled to be heard by the circuit court. Prior to the hearing, the parties stipulated through counsel that the court’s decision would be based solely on the written transcript of the hearing held before the referee.
After reviewing the transcript conducting an extensive in camera interview with Marlena, the trial court ordered that, in the best interests of Marlena, custody should be retained by her grandparents. Defendant appeals from this order.
On appeal, defendant first argues that the trial court’s award of custody to the plaintiffs must be reversed because it is against the great weight of the evidence. The trial court’s findings in child custody cases are reviewed de novo by this Court. DeGrow v DeGrow, 112 Mich App 260, 265; 315 NW2d 915 (1982); Arndt v Kasem, 135 Mich App 252; 253 NW2d 497 (1984); Wilkins v Wilkins, 149 Mich App 779, 786; 386 NW2d 677 (1986). A reviewing court must appraise the evidence apart from the trial court’s findings. Arndt, supra; Wilkins, supra. However, relief is ultimately limited by § 8 of the Child Custody Act, 1970 PA 91, which provides:
To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue. [MCL 722.28; MSA 25.312(8).]
The act specifies ten factors for the trial court’s consideration in child custody disputes and additionally allows the trial court to consider any other factor it deems to be relevant in a particular dispute. MCL 722.23; MSA 25.312(3). Defendant challenges the trial court’s findings on seven of the specified factors as against the great weight of the evidence.
The first factor specified in the act is:
The love, affection, and other emotional ties existing between the parties involved and the child. [MCL 722.23(a); MSA 25.312(3)(a).]
The trial court held:
From the evidence presented, and the lengthy interview conducted by the Court with the minor child, it is obvious to the Court that Marlena has established strong, loving bonds with her grandparents. Furthermore, her life style with them is the major source of security for her at this time in her life. While there is evidence that loving bonds do exist between Marlena and her father, there is no evidence that this bonding is remotely close to that which exists between Marlena and her maternal grandparents. Consequently, this Court would have to hesitate before entering an order of custody that would jeopardize this strong and loving relationship between Marlena and her grandparents. Certainly, an award of custody to the defendant-father could occur under a situation that, given good will and co-operation, would allow the strong ties between Marlena and her grandparents to continue. The evidence, however, concerning the severely strained relations between the plaintiff and defendant cause this Court to believe that a change of custody to the defendant could, and would likely, seriously jeopardize the chances of a meaningful continuing relationship between the plaintiffs and Marlena.
Defendant argues that the trial court’s finding in this regard places too much emphasis on the in camera interview with the minor child and fails to realize that it is difficult for defendant to improve his emotional ties with his daughter while she is living in her grandparents’ home. We disagree. The trial court was not only entitled to consider the minor child’s testimony in this regard, but, given that it found Marlena to be bright and unusually mature, was actually required to do so. Flaherty v Smith, 87 Mich App 561; 274 NW2d 72 (1978); MCL 722.23(i); MSA 25.312(3)(i). Moreover, while it is true that the trial court did not consider defendant’s difficulty as an absentee parent under this subsection, the trial court did give consideration to that factor under subsections (b) and (i). Since subsection (a) does not specifically require consideration of defendant’s special problem, we decline to find any error. Finally, our review of the evidence does not lead us to conclude that the trial court’s finding for the plaintiffs on factor (a) was against the great weight of the evidence. Arndt, supra; Wilkins, supra.
Defendant also challenges the trial court’s finding on factor (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. [MCL 722.23(b); MSA 25.312(3)(b).]
In this regard, the trial court held:
Although the defendant and the plaintiffs both seem anxious and willing to give love and guidance to the minor child, the defendant’s educational background would seem to indicate a greater ability for continuing and enhancing Marlena’s educational performance. With respect to love and affection, however, it appears that the plaintiffs along with the extended family Marlena has come to know, including aunts, uncles and cousins are in a better position to provide many different forms of love and affection to Marlena. The interview with Marlena also confirmed the importance to her to continue to be a part of this extended family. Again, the strain evident between the plaintiffs and defendant might jeopardize Marlena’s involvement with this extended family, if there was a change of custody to the defendant.
This Court is not unmindful of the fact that the defendant now has a new family with his new wife and their son. The Court also believes, that after some adjustment period if the defendant was granted custody of Marlena, a cohesive immediate family and possibly important extended family could develop. Nonetheless, the Court is convinced that the family group that Marlena knows at her grandparents presently has a greater ability, as a unit, to provide Marlena with many forms of love and affection.
With respect to the raising of the child in its religion or creed, the Court is persuaded that each party desires to provide Marlena with religious education, and that this part of this factor is not a significant differentiating one.
Defendant argues that the testimony in fact shows that Marlena feels lacking in maternal and paternal support in her current environment — the plaintiffs’ home. However, our review of the record indicates that this passage from Susan Orbach’s testimony is taken out of context. Orbach, a licensed psychologist, further explained that this sense of traumatic loss is rooted in Marlena’s very early childhood and that, if moved from her grandparents’ to her father’s home, the sense of loss would actually increase. We believe that it is defendant who has ignored the complete testimony of the experts regarding factor (b). The trial court’s finding in this regard is not against the great weight of the evidence. Arndt, supra; Wilkins, supra.
Defendant next challenges the trial court’s finding in factor (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. [MCL 722.23(c); MSA 25.312(3)(c).]
The trial court held:
Although each of the competing parties is financially responsible, this Court is persuaded that the grandparents are in a better position to provide food, clothing and medical care. Their employment history is long and stable, and they live in a home that they have owned for many years. The father, on the other hand, has chosen politics as a career. His position with Royal Oak Township could disappear at the next election. Although he has completed law school, the defendant is not licensed to practice law. Given the uncertainty of the father’s career, and his slim employment record, it appears to this Court that the grandparents present income provides a significantly greater capacity to provide food, clothing and medical care for Marlena.
Defendant argues that the trial court erred in its consideration of factor (c) by placing extreme emphasis on economic factors. Mrs. Glover’s annual salary of $27,000, combined with Mr. Glover’s annual pension benefits of $9,600, does greatly exceed defendant’s annual salary of $15,000 as Supervisor of Royal Oak Township. Moreover, defendant is now remarried, has one other child and is currently renting a house, while plaintiffs own their home and have no other children to support. Given that defendant’s financial position is precar ious at best, we do not believe that the trial court placed any undue emphasis on this factor. Indeed, when the trial court’s opinion is viewed as a whole, we are inclined to believe that it understated the significance of defendant’s financial position. Finally, we find no error in the trial court’s recognition that defendant has been unable to pass the bar exam subsequent to his graduation from law school in April of 1984. Should defendant succeed in passing the bar exam and should his financial circumstances improve thereafter, he is not foreclosed from again petitioning the circuit court. At this point, however, it would be speculative of the court to assume that defendant’s financial circumstances are about to blossom. The trial court’s finding in this regard is not against the great weight of the evidence. Arndt; supra; Wilkins, supra.
Defendant next challenges the trial court’s finding as to factor (d):
The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. [MCL 722.23(d); MSA 25.312(3)(d).]
The trial court held:
As previously indicated, the minor child has always lived with her grandparents. The evidence is persuasive that this is a happy nurturing environment. The psychologists who tested Marlena, and who testified at the hearing, indicated that, at this point in time, it would jeopardize Marlena’s emotional well being to leave home. Consequently this testimony from the psychologist along with the length of time the child has lived in the same environment suggests that the present environment is satisfactory, and a move may jeopardize Marlena’s emotional well being.
Defendant argues that the trial court’s finding in this regard ignores expert testimony indicating that Marlena’s best interest, in the long-term, is in establishing a true parent-child relationship with her father. We disagree. The trial court’s findings clearly indicate that the desirability of maintaining a stable environment outweighs the desirability of establishing residence with the father at this time. Moreover, we believe that the trial court’s finding in this regard is fully supported by the expert testimony, which suggests that the father-daughter relationship has not yet reached a point at which a change of custody is desirable. Thus, we do not hold that the trial court’s findings on this factor are against the great weight of the evidence. Arndt, supra; Wilkins, supra.
Next defendant challenges the trial court’s findings on factor (e):
The permanence, as a family unit, of the existing or proposed custodial home or homes. [MCL 722.23(e); MSA 25.312(3)(e).]
The trial court held:
The home of the defendant has changed a considerable number of times over the last four or five years. The defendant, however, seems to have begun to establish roots in Royal Oak Township with his new wife and child. Consequently, the defendant seems to be in the process of creating a permanent family unit.
The plaintiffs’ home on the other hand seems to have always been, and gives every reason to believe will continue to be, a permanent place for the family unit. The people living in this home have been consistent for a long period of time, and Marlena seems familiar and comfortable with that environment. Furthermore, Marlena’s grandmother does, and always has, arranged her work schedule around the care of Marlena. In addition, the grandfather is retired and available for child care duties. Marlena has toys and friends at this home as well as an established school situation.
Defendant argues that the trial court’s finding in this regard is erroneous since the plaintiffs are advanced in years and that his, defendant’s, home has always been in Royal Oak Township. We do not agree that Mr. and Mrs. Glover’s ages, sixty and fifty-six years respectively, are so advanced as to inject an element of instability into their home. Furthermore, while defendant’s home in the past was in Royal Oak Township and currently is in Royal Oak Township, he is only now reestablishing himself there after living and working in Lansing for several years. Plaintiffs have been married for thirty years, as opposed to defendant’s fourteen months, and have continuously resided at their present address for twenty years. The trial court’s findings regarding this factor are not clearly erroneous. Arndt; supra; Wilkins, supra.
Defendant next challenges the trial court’s finding as to factor (g):
The mental and physical health of the parties involved. [MCL 722.23(g); MSA 25.312(3)(g).]
The trial court found:
The defendant gives every indication of being a young vigorous and physically and mentally healthy person. Similarly, there is no evidence in the record to suggest that the grandparents have any significant health problems. The Court is, however, mindful of the fact that the plaintiffs are a generation older than the defendant. Although this is not a great concern, the Court does harbor some reservations about this age difference. Nonetheless, from the age and health of the plaintiffs it appears that they will be available for many years to provide support and companionship to Marlena. This factor does not seem extremely significant, but does seem to favor the defendant.
Although the trial court found in favor of defendant on this factor, defendant argues that the trial court failed to assign the appropriate weight to this factor. We disagree. The record fully supports the fact that both parties are in good health. Defendant does not dispute this fact but, instead, argues that the trial court failed to give appropriate consideration to the age of the plaintiffs. However, given that both parties are in good health and given that a new petition may be filed by defendant if and when the health of the plaintiffs becomes a factor, we believe that the weight assigned by the trial court was more than generous to defendant. The trial court’s finding in this regard was not clearly erroneous. Arndt, supra; Wilkins, supra.
Finally, defendant challenges the trial court’s findings as to factor (i):
The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference. [MCL 722.23(i); MSA 25.312(3)(i).]
The trial court held:
From the interview, Marlena appears to the Court to be a bright, sensitive and wonderful child. Marlena appeared to the Court to be unusually mature for her seven years of age. Although Marlena’s age requires the Court to hesitate in giving too much weight to the interview, the Court is persuaded that it does merit consideration. Based on the interview that lasted approximately one hour and fifteen minutes the Court is per suaded that Marlena wishes to remain in the home of her grandparents.
In short, Marlena has established strong, loving bonds with her grandparents, and her lifestyle with them is the major source of security for her at this time in her life. Additionally, Marlena seems keenly aware of the communication problems that exist between her father and her grandparents and seems to fear that a change of custody to the defendant might jeopardize the relationship she has with her grandparents.
Again with this factor, defendant does not actually challenge the trial court’s finding but, instead, argues that the trial court assigned too much weight to Marlena’s preference. It is apparent to us that the trial court did not assign great weight to this factor and that the weight assigned was in accord with the trial court’s findings as to Marlena’s intelligence and maturity levels. The trial court’s findings in this regard were not against the great weight of the evidence. Arndt, supra; Wilkins, supra.
In addition to challenging the trial court’s findings of fact, defendant challenges the trial court’s "selective” use of expert testimony. We believe that distillation of information is the very essence of fact-finding. Thus, to the extent that defendant challenges the failure of the trial court to include all of the evidence of record in its opinion, we find no error. Furthermore, defendant has neither alleged nor shown any pattern of selection on the part of the trial court which would constitute an abuse of discretion under MCL 722.28; MSA 25.312(8). See also Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959) (defining "abuse of discretion”). We therefore decline to reverse the trial court’s holding because of its selective use of evidence.
Defendant’s third and most substantial issue on appeal is that the trial court failed to properly apply the parental presumption contained in § 5 of the Child Custody Act:
When the dispute is between the parents, between agencies or between third persons the best interests of the child shall control. When the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence. [MCL 722.25; MSA 25.312(5). Emphasis added.]
This matter is complicated, however, by applicability of the established custodial environment presumption contained in § 7 of the act:
(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 another [sic] or judgment of the circuit cpurt, 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 inclina tion of the custodian and the child as to permanency of the relationship shall also be considered. [MCL 722.27; MSA 25.312(7). Emphasis added.]
Here, it is undisputed that defendant is the natural father of Marlena and thus entitled to the parental presumption. However, it is equally clear that Marlena has resided with the plaintiff-grandparents since birth and, since the death of her mother five years prior to the hearing, has looked exclusively to the plaintiffs for guidance, discipline and the necessities of life on a day to day basis. Thus, the plaintiffs are entitled to a presumption in favor of the established custodial environment.
In resolving this statutory dilemma, the trial court turned to our decision in Siwik v Siwik, 89 Mich App 603; 280 NW2d 610 (1979). There we held
this apparent conflict has been resolved properly in Stevens v Stevens, 86 Mich App 258, 264-269; 273 NW2d 490 (1978), and Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975). In each of those cases, our Court concluded that the basic inquiry must be into the best interests of the child. Further, the presumptions in MCL 722.25 [MSA 25.312(5)] and MCL 722.27(c) [MSA 25.312(7)(c)] should be recognized equally, with the best interest of the child as the overriding concern, a concern sufficient to overcome any of the rebuttable presumptions in the statute. [Siwik, supra, p 608.]
In Deel v Deel, 113 Mich App 556; 317 NW2d 685 (1982), we followed Siwik, explaining further:
Both presumptions should be considered because both are concerned with the ultimate issue of the child’s best interests. The statutory language and the decisions of this Court suggest, however, that the burden is on the third party to rebut the presumption in favor of the natural parent. Stevens and Bahr were concerned with recognizing both presumptions because prior law had established that the parental presumption could only be overcome by a showing that the natural parent was unfit. See Bahr v Bahr, supra, p 359. Recognition of both presumptions does not, however, remove the third party’s burden to show that custody in his or her favor is in the child’s best interests. If the third party provides an established custodial environment this is an important factor to consider in determining whether the presumption in favor of the natural parent has been rebutted.
. . . The fact that both presumptions should be recognized does not mean that in every case where these presumptions collide they cancel each other out and can play no part in determining the best interests of the child. That determination must be made with the utmost care after determination of all relevant factors. This process is unwisely restricted if the trial court cannot consider the fact that one of the parties provides an established custodial environment simply because the other party is a natural parent, or vice versa. It is not error to weigh ultimately the facts underlying one presumption more heavily than those underlying the other so long as the circumstances dictate that such weight is appropriate and so long as the inquiry remains focused on the best interests of the child. [Deel, supra, p 562-563.]
Like the trial court, we believe that this analysis properly resolves the apparent conflict between §§ 5 and 7(c) of the act. We do acknowledge that our much earlier decision in Baldwin v Baldwin, 56 Mich App 489; 224 NW2d 116 (1974), appears to endorse an analysis in which the parental presumption prevails over the established custodial environment presumption. The reasoning of Baldwin is suspect in light of the fact that two of the judges of that panel no longer espouse the reason ing therein. See Stevens v Stevens, 86 Mich App 258, 267, n 3; 273 NW2d 490 (1978). Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975), also repudiated the Baldwin reasoning. In re Maria S Weldon, 397 Mich 225; 244 NW2d 827 (1976), a case in which five of the justices participated, suggests that three members of the Supreme Court support the reasoning of Bahr.
Further, we believe that Baldwin is distinguishable in that the trial court therein failed to give any consideration to the parental presumption. In the case before us, the lower court considered the parental presumption but properly found that it was rebutted on the May 30, 1980, circuit court consent order and the contested hearing of May, 1981. This state of affairs continued to the date of the lower court’s ruling herein.
We also acknowledge that the Siwik-Deel rule is less than a model of clarity for trial courts, who must continue to balance the two presumptions in cases such as this. However, we believe that the remaining problems arising out of these competing presumptions may be effectively resolved by refinement of the standard rather than replacement.
As we concluded in Deel, the fact that the two presumptions are opposed in certain cases does not mean that they cancel each other out. On the other hand, it cannot mean that the burden of proof in each presumption must continue to be applied literally. Such a conclusion would only lead trial courts into a logical paradox. We therefore conclude that, in instances in which both the parental presumption of § 5 and the established custodial environment presumption of § 7 are applicable, the burden of proof evolves into a preponderance of the evidence. A remaining question is which party bears the burden of proof.
In Deel, as quoted supra, we noted that the statutory language and our prior decisions suggest that the burden of proof is on the third party to rebut the parental presumption. However, Deel also notes that proof of the existence of an established custodial environment could effectively rebut the parental presumption. We think that it is obvious that each party bears the burden of proof vis-á-vis his own presumption. The key issue is who bears the burden of persuasion in these cases.
We hold that the burden of persuasion rests with the parent challenging an established custodial environment in the home of a third party. In doing so, we are not unmindful of the special care with which the Legislature articulated the parental presumption, nor are we unmindful of the fact that the established custodial environment presumption is purely procedural. Nevertheless, it is clear that the best interest of the child is the primary goal of the act. MCL 722.27(1); MSA 25.312(1), Deel, supra, p 559, and cases cited therein. We believe that placing the burden of persuasion on the parent challenging an established custodial environment is better calculated to elicit the quality of testimony and evidence required by a trial court in its determination of the best interest of the child. We also believe that, as indicated by the expert testimony in this and other cases, the importance of residence with a biological parent pales beside the importance of stability and continuity in the life of a child. Of course, if the trial court finds more than a mere biological relationship, it remains free under Deel to accord greater or even dominant substantive weight to the parental relationship. Finally, we do not believe that the burden of persuasion by a preponderance of the evidence unduly oppresses the rights of a parent. Once the burden has been met, both presumptions would vest in the parent, making further changes of custody unlikely.
After reviewing the trial court’s analysis, we are satisfied that the correct burdens of proof and persuasion were applied. Defendant has failed to establish by a preponderance of the evidence that the best interest of Marlena rests other than in the established custodial environment of the plaintiffs’ home. Indeed, were the standard otherwise, we would conclude that the plaintiffs have established by clear and convincing evidence that the best interest of Marlena does not rest in defendant’s custody.
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Per Curiam.
The people appeal from the January 24, 1986, order of the Wayne Circuit Court suppressing evidence against defendant, Darrell Eugene Nesbitt. We reverse.
At an evidentiary hearing held on January 15, 1986, John Axel Hlinak testified that he was employed as a Romulus police officer on November 11, 1985. At approximately 1:20 A.M., while on routine patrol, he observed a vehicle speeding northbound on Middlebelt Road. He had received information that an armed robbery had just taken place at a restaurant approximately one-half mile south of his location. The information, which was relayed by radio, indicated that there were two armed black suspects driving northerly on Middle-belt in a black and silver Buick.
Officer Hlinak saw a black Oldsmobile with two black individuals in it. When he started to pull up behind the vehicle and activate his emergency equipment, the vehicle took off. A chase ensued. Eventually, the vehicle stopped and the two sus pects ran different ways on foot. Hlinak chased the driver on foot for two or three blocks, but lost him. The driver was black, approximately 5'8" tall, medium built, and was wearing a light colored shirt and dark pants. The officers then discovered that the Oldsmobile was a stolen vehicle. A search of the vehicle yielded the cash from the armed robbery.
Officer Hlinak returned to the station where he picked up some plaster casting equipment. He returned to the scene of the chase, where he saw two sets of footprints, his and the suspect’s. Officer Hlinak took pictures of the footprints and made a plaster cast of the suspect’s footprint. Hlinak returned to the station, where he compared the footprint cast to the boot of the suspect, who had been arrested and was in lockup. The department had a policy of removing all personal property, belts, boots and anything else that could cause harm from suspects headed for the D Cell detention area. Defendant’s boots were standing outside the door of his cell. Hlinak made a print of them, which he compared with a print made from the plaster cast. The footprints appeared to match. Officer Hlinak gave the boots and the cast to the State Police Department. He did not try to obtain a search warrant to seize the boots.
Michael Joseph Giroux testified that, on November 11, 1985, he was a police officer for the City of Romulus. On that date, he had been dispatched to the scene of a robbery at the Flag Restaurant on Middlebelt. When defendant was arrested for the robbery, he was wearing a white shirt and wet and muddy shoes. The field where Officer Hlinek chased defendant was less than a mile from the trailer park where defendant was arrested.
It was stipulated that the booking officer removed defendant’s boots and placed them in the area outside defendant’s cell. The routine procedure is to take the boots from a prisoner when he or she is placed into the cell and to return the boots if the prisoner is transported somewhere else.
On appeal, the people argue that the circuit judge erred in suppressing defendant’s boots and prints made from them as fruits of an illegal search and seizure, since defendant was lawfully in custody at the time the boots were taken from him as a routine policy measure. We agree.
Defendant’s successful argument to the circuit court was based on the Supreme Court’s holding in People v Trudeau, 385 Mich 276; 187 NW2d 890 (1971), cert den 405 US 965 (1972). In that case, the defendant’s shoes were seized without a warrant while he was incarcerated at a county jaiLon an unrelated charge. The Court noted that the seizure was not justified by the plain view doctrine, that the defendant was not advised of his constitutional rights, that the officer was acting on a "mere suspicion,” and that the link between the shoes and the heel print found at the scene was not established until after the shoes were examined for a week by an expert. The Court further noted: "This holding is not to be construed as in any way affecting essential steps which must be taken by the police in processing a prisoner as outlined in United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), and to assure the protection of police and of other prisoners.” Trudeau, supra, p 281.
Trudeau is distinguishable from the case at bar. In that case, the defendant was imprisoned on another charge; in this case, defendant was arrested for the crime of which the boots were evidence, and he does not suggest that the arrest was illegal. The officer was not acting on a mere suspicion when he examined defendant’s boots; rather, he had chased defendant through a muddy field just prior to his arrest. We also note that defendant’s boots were taken from him as a matter of departmental policy concerning the processing of prisoners, while the Trudeau defendant was required to give his shoes to the police, despite his refusal to do so.
In People v Brooks, 405 Mich 225, 247-248; 274 NW2d 430 (1979), the Michigan Supreme Court noted that it was not unreasonable for police to examine and hold as evidence the personal effects of an accused in their lawful custody as the result of a lawful arrest. See also United States v Edwards, 415 US 800; 94 S Ct 1234; 39 L Ed 2d 771 (1974), and People v Spencer, 93 Mich App 605, 607; 286 NW2d 879 (1979). We conclude that the trial court erred by suppressing the evidence obtained from the seizure of defendant’s boots. See People v Cicotte, 133 Mich App 630, 633-634; 349 NW2d 167 (1984).
Reversed and remanded. | [
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Per Curiam.
Plaintiff appeals as of right from an order of the Oakland Circuit Court granting summary disposition in favor of defendant.
For purposes of this motion, the material facts are not in dispute. Plaintiff, Irene A. Cockels, was employed by defendant, International Business Expositions, Inc., a corporation doing business as Business Expo, from approximately December 1, 1983, until October 3, 1984. Plaintiff was compensated by defendant on a commission basis of ten percent on sales of booths and advertising for defendant’s business expositions. Plaintiff allegedly performed in an exemplary manner and was, in fact, not disciplined or reprimanded in any fashion by defendant from the beginning of her employment to September 6, 1984. On September 6, 1984, plaintiff’s attorney wrote defendant, requesting payment of approximately $2,000 in commissions which defendant allegedly owed and wrongfully withheld from plaintiff. In the three weeks which followed, plaintiff received twelve memoranda from defendant reprimanding her for various aspects of her employment performance. Finally, on October 3, 1984, plaintiff was discharged by defendant.
On December 21, 1984, plaintiff filed a complaint with the Michigan Department of Labor. Plaintiff did not allege wrongful termination, but merely sought the return of wages and commissions allegedly due as of October 31, 1984. This claim was ultimately resolved by a consent agreement reached by the parties.
Plaintiff thereafter filed the instant complaint in the circuit court on February 4, 1986, alleging that her discharge, due to her assertion of her right to compensation, violated the "public policy of the State of Michigan as embodied in the wages and fringe benefits act,” MCL 408.471 et seq.; MSA 17.277(1) et seq. (Count i), and was in breach of defendant’s implied covenant of good faith and fair dealing in the contract of employment (Count ii).
On March 7, 1986, defendant filed a motion for summary disposition, claiming that plaintiffs Complaint failed to state a claim upon which relief could be granted. Defendant argued that the Department of Labor had exclusive jurisdiction over Count i of the complaint and that Count n was not cognizable in Michigan because plaintiff was an employee at will. Following a hearing on the motion, the circuit court granted the motion in an order entered April 24, 1986.
Defendant’s motion for summary disposition was brought and granted under MCR 2.116(C)(8). Motions under this subrule test the legal sufficiency of the pleadings. All well-pled allegations must be taken as true, and the motion should be denied unless the alleged claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Hankins v Elro Corp, 149 Mich App 22, 26; 386 NW2d 163 (1986).
Plaintiff first argues that the trial judge erred in dismissing her claim that she was improperly discharged for demanding payment of her commissions. The trial court held. that this claim fell within the ambit of the act, which grants exclusive jurisdiction over the claim to the Department of Labor. We find no error.
The preamble to the act states:
An act to regulate the time and manner of payment of wages and fringe benefits to employees; to prescribe rights and responsibilities of employers.and employees, and the. powers and duties of the department of labor; to require keeping of records; to provide for settlement of disputes regarding wages and fringe benefits; to prohibit certain practices by employers; to prescribe penalties and remedies ....
MCL 408.472; MSA 17.277(2) gives employees the right to payment of earned wages at specific, regular intervals. MCL 408.471(l)(f); MSA 17.277(l)(f) defines "wages” as "all earnings,” including those determined on the basis of commission.
MCL 408.483; MSA 17.277(13) provides in pertinent part;
(1) An employer shall not discharge an employee or discriminate against an employee because the employee filed a complaint, instituted or caused to be instituted a proceeding under or regulated by this act, testified or is about to testify in a proceeding, or because of the exerdise by the employee on behalf of an employee or others of a right afforded by this act.
(2) An employee who believes that he or she is discharged or otherwise discriminated against by an employer in violation of this section may file a complaint with the [labor] department alleging the discrimination within 30 days after the violation occurs. Upon receipt of the complaint, the department shall cause an investigation to be made. If, upon the investigation, the department determines that this section was violated, the department shall order the rehiring or reinstatement of an employee to his or her former position with back pay. [Emphasis added.]
MCL 408.481; MSA 17.277(11) provides that "a complaint filed under section 13(2) must be filed within 30 days after the alleged violation occurs.” MCL 408.481; MSA 17.277(11) further provides the manner in which the department is to investigate and hear an alleged violation.
At issue is whether plaintiff’s written demand for prompt payment of earned commissions, for which she was allegedly terminated, constituted the "exercise by the employee ... of a right afforded by this act,” MCL 408.483(1); MSA 17.277(13)(1). Both parties agree that, if this inquiry is answered in the positive, the remedies provided by the act apply and are exclusive.
The allegations in plaintiffs complaint do not specifically claim that plaintiff was not paid in accordance with the exact schedules set forth in MCL 408.472; MSA 17.277(2); rather, plaintiff alleged that she demanded "payment of approximately $2,000 in commissions owed plaintiff and unpaid.” Plaintiff further alleged that she was discharged in retaliation for this demand, in violation of the public policy embodied in the act. We believe that these allegations were sufficient to bring plaintiffs claim within the ambit of the act. As stated in the preamble, one of the purposes of the act is to prescribe the rights and responsibilities of employers and employees with regard to the time and manner of payment of wages. Although plaintiff did not specify in her request that her commissions had been withheld in violation of the schedules set forth in the act, MCL 408.472; MSA 17.277(2), she was clearly asserting her rights to payment of those commissions and those rights were in fact derived from the act.
Accepting the truthfulness of the allegations, we therefore conclude that plaintiff was terminated for exercising a right afforded by the act. Moreover, plaintiff is not excused from failing to seek her remedy pursuant to the act merely because she pleaded that the act embodies an independent public policy that employees receive payment of wages in a timely manner. Although a termination in contravention of a strong public policy is wrongful and an exception to the general rule that' employment contracts may be terminable at will, Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982); Watassek v Dep’t of Mental Health, 143 Mich App 556, 563; 372 NW2d 617 (1985), lv den 424 Mich 878 (1986), administrative remedies provided by the Legislature in statutory schemes embodying those public policies must be pursued before a grievant may seek legal redress in the courts. Schwartz v Michigan Sugar Co, 106 Mich App 471, 479; 308 NW2d 459 (1981), lv den 414 Mich 870 (1982); Ohlsen v DST Industries, Inc, 111 Mich App 580, 585-586; 314 NW2d 699 (1981), lv den 417 Mich 1046 (1983); Covell v Spengler, 141 Mich App 76, 84; 366 NW2d 76 (1985), lv den 422 Mich 977 (1985). Since plaintiff failed to pursue the administrative remedies provided by the statute, we need not decide whether the public policy expressed in the statute is One which provides an exception to the general rule that employment contracts may be terminable at will. Summary disposition as to Count i was proper.
Plaintiff also argues that she has stated a cause of action for breach of the implied convenant of good faith and fair dealing, even though she concedes that she was an at-will employee.
This issue was before the Michigan Supreme Court in Prussing v General Motors Corp, 403 Mich 366; 269 NW2d 181 (1978), where the Court declined to rule on the issue. Subsequently, in Schwartz v Michigan Sugar Co, supra, this Court likewise declined to rule on the issue, stating that such a "radical departure from the common law and Michigan precedent. . . should come from the Supreme Court.” 106 Mich App 481.
Similarly, in Schipani v Ford Motor Co, 102 Mich App 606; 302 NW2d 307 (1981), this Court reversed the trial court’s denial of defendant’s motion for summary judgment with respect to plaintiffs claim that he was demoted by his employer maliciously and in bad faith. In so doing, this Court rejected the notion that an employer was charged with an implied covenant to act with good faith in an at-will employment contract:
Regarding plaintiffs Count m, a contract for indefinite employment has generally been held to be terminable at will. Lynas v Maxwell Farms, [279 Mich 684; 273 NW 315 (1937)]. This Court has stated that "[s]uch a contract is not violated even by an arbitrary or capricious discharge.” Hernden v Consumers Power Co [72 Mich App 349; 249 NW2d 419 (1976)] supra, 356. However, this Court has intervened where "the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state.” Sventko v The Kroger Co, 69 Mich App 644, 647; 245 NW2d 151 (1976). [102 Mich App 619.]
Schipani thus illustrates the inconsistency between an implied covenant of good faith and fair dealing and an employer’s rights to discharge at-will employees. In Michigan, an employer may terminate an employee arbitrarily and capriciously absent a violation of public policy or an agreement to the contrary. As noted by our Supreme Court in Michigan State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 158; 365 NW2d 93 (1984):
The legal protection of employee interests in job security is the exception, rather than the rule, in this state. In the absence of contractual agreements to the contrary, see, e.g., Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), and of unlawful reasons for discharge such as race or sex discrimination, private sector employees are terminable at the will of their employers.
Summary disposition as to Count n was likewise proper.
Affirmed. | [
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Per Curiam.
In this appeal, the prosecutor appeals as of right from an order of the Detroit Recorder’s Court suppressing the evidence against the defendant and dismissing the charge, based on a finding of entrapment. We reverse.
Defendant, Virginia Lynne Forrest, and codefendants Joanne Cook and Cecilia Swistak were originally charged with one count of possession of marijuana with the intent to deliver and one count of conspiracy to possess marijuana with the intent to deliver. Following a preliminary examination, defendant Forrest and Joanne Cook were bound over for trial only on the conspiracy charge. Codefendant Swistak was bound over for trial for possession of cocaine and possession of a firearm during the commission of a felony, but the conspiracy charge was dismissed based on a finding of entrapment. Prior to trial, defendant and Cook gave notice of their intention to raise the defense of entrapment. An evidentiary hearing was held on the issue at which the trial court found that defendant had been entrapped. It is from that ruling that the prosecutor appeals.
The alleged improper police conduct in this case involved a reverse-buy transaction, where the police furnished the marijuana that served as the basis of the charges against the defendant and codefendants. At the evidentiary hearing, Detroit police officer William Bowman testified that he had previously purchased cocaine from Swistak as part of an ongoing investigation. At one point, intending to withdraw from the investigation, Bowman informed Swistak that he was leaving to go to Florida to find a new marijuana source. A couple of weeks later, Bowman was asked to reestablish contact with Swistak because the other officers had been unable to contact her. During a telephone conversation, Swistak asked Bowman if he had returned with any marijuana and indicated that she could sell it for him. Bowman stated that he had obtained two hundred pounds of marijuana which he would sell for $70,000. Officer Bowman further testified that he was very surprised when Swistak indicated an interest in the marijuana because he had called her solely to arrange the purchase of more cocaine and had not intended to initiate a sale with her for the marijuana.
After several more telephone conversations, Bowman agreed to meet with Swistak and her connections to arrange the sale. At that point, Bowman did not know the identity of Swistak’s connections. When Bowman arrived at the agreed-upon location, he was introduced to defendant Forrest. Forrest told him that the connection was hers and that the lady who would be buying the marijuana would not deal with Swistak unless she, Forrest, was also present. Defendant further indicated to Bowman that she was making some money on the deal but did not intend to do any further deals. Ultimately, defendant’s connection arrived and the sale was made, after which all the participants were arrested.
Initially, the prosecutor asserts that the trial court erred in finding that defendant had standing, to argue the defense of entrapment. We disagree.
This Court has held that a defendant lacks standing to raise the defense of entrapment where an informant’s activities were directed only at a codefendant and were not within the knowledge of the defendant. People v Soltis, 104 Mich App 53, 55; 304 NW2d 811 (1981), lv den 411 Mich 1037 (1981). However, where charges against a defendant and codefendant arose from the same allegedly impermissible police conduct, it is proper for a trial court to apply its entrapment findings to both defendants. People v Matthews, 143 Mich App 45, 54; 371 NW2d 887 (1985).
Here, we disagree with the prosecutor’s argument that Swistak was the only defendant who had standing to raise the entrapment defense. Defendant first learned about the two hundred pounds of marijuana through Swistak, who had Bowman’s permission to try to set up a transaction. Thereafter, defendant met with Bowman personally on one occasion before the transaction was actually carried out. During that meeting, defendant indicated her involvement in the sale and Bowman expressed his intention of selling to the defendant’s buyer. Thus, under Soltis, the allegedly improper furnishing of marijuana was with the knowledge of defendant. Also, because the charges against both Swistak and defendant arose out of the reverse-buy transaction, it was proper for the trial court to allow the defendant to assert entrapment.
The trial court also found that Officer Bowman’s conduct in the reverse-buy transaction was reprehensible and therefore constituted entrapment of the defendant. The prosecutor argues that the court erred in finding entrapment under the facts of this case. We agree with the prosecutor.
In People v Matthews, supra, p 54, this Court summarized the defense of entrapment as follows:
Michigan has adopted the objective test for entrapment, focusing on whether the actions of the police were so reprehensible under the circumstances that public policy will not permit defendant’s conviction to stand. People v Turner, 390 Mich 7, 22; 210 NW2d 336 (1973). The purpose of the entrapment doctrine is to deter unlawful police activities and preclude judicial approval of impermissible government conduct. People v D’Angelo, 401 Mich 167, 172-173; 257 NW2d 655 (1977). The defendant’s guilt or innocence is irrelevant. Id., p 179. The defendant has the burden of showing by a preponderance of the evidence that he was entrapped, and the lower court’s findings will not be disturbed unless clearly erroneous. Id., pp 180-183.
Defendant cites a plethora of authority from many jurisdictions to support her position that the police department’s providing of the marijuana which was sold to her constitutes entrapment. However, we believe that the instant case is similar to and controlled by People v Duke, 87 Mich App 618; 274 NW2d 856 (1978). In Duke, the defendant was charged with possession of heroin. The State Police had received information that a prison guard was smuggling drugs into the prison. A female officer, posing as the wife of a prisoner, obtained some heroin and a deal was arranged where the defendant would pick up the heroin. After leaving with the heroin, defendant was arrested. At the entrapment hearing, defendant ar gued, as does the present defendant, that he was entrapped because the police supplied the substance which provided the basis of the possession charge.
In reversing the trial court’s finding of entrapment, this Court stated:
[Defendant relies upon the fact that the heroin which provides the basis for the possession charge was supplied by the police. In support of this theory, defendant cites People v Stanley, 68 Mich App 559; 243 NW2d 684 (1976). There, the Court held that the defense of entrapment is available where the prosecution is aimed at the sale of contraband originally obtained from a government agent. In addition, Stanley involved a situation where a state police detective feigned withdrawal sickness to bring about the sale.
The present case, however, involves neither an appeal to defendant’s sympathies, nor a "take-back” sale. Rather, the present case involves a situation where the police, in response to orders from the persons involved in the criminal enterprise, delivered a quantity of heroin to defendant. Although the fact that the drugs were provided by the government in this case is certainly one factor to consider, that factor must be considered along with all the other facts of the case.
We now hold that the trial judge erred in ruling that entrapment had occurred. The record supports the conclusion that the idea for the crime did not originate with the police. The police had no role in determining how the transfer of the drugs would be carried out. The police were merely responding to the orders of those who had conceived the crime. [Id., pp 622-623.]
Defendant attempts to distinguish Duke from the present case by arguing that Officer Bowman instigated and formulated the details of the transaction. Based on the record, we disagree. Officer Bowman’s uncontradicted testimony established that he made cocaine purchases from Swistak on two occasions prior to the transaction in question. The record also reveals that Swistak instigated the sale to defendant by inquiring whether Bowman had successfully found a marijuana source and by volunteering, without a prior request by Bowman, to find a buyer for Bowman’s marijuana. Moreover, Bowman testified that he had fabricated the Florida story only as a way to substitute his partner into a preexisting drug investigation involving Swistak. The idea for the crime clearly did not originate with the police. Rather, the police merely accepted the assistance of Swistak and defendant, who conceived of the crime. We find nothing reprehensible in the police conduct.
We recognize that some jurisdictions have held that the government’s conduct in providing drugs is "reprehensible.” However, we refuse to adopt a similar per se rule. Such a rule would inhibit otherwise legitimate law enforcement techniques which are oftentimes the only way the police can obtain evidence in drug-related offenses. When approached by an individual who instigates the commission of a crime, the police should not be required to turn their backs. Thus, we find that the defendant’s authority should not control the disposition of the case.
Under the circumstances of this case, the trial court’s finding of entrapment under the objective test was clearly erroneous. Therefore, the decision of the trial court suppressing the evidence and dismissing the charge against the defendant is reversed.
Reversed and remanded.
Bronson, P.J., did not participate. | [
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Carr, J.
Plaintiff brought this action in the circuit court to recover damages for loss of property claimed to have resulted from acts of negligence on the part of the defendant and her employees. The declaration filed alleged the respective residences of the parties, and that plaintiff kept numbers of selected mink and foxes for breeding purposes on his fur farm located on highway US-23 in Arenac county. The pleading further set forth that during the month of April, 1953, and for some time thereafter, defendant, as the owner of the A. T. Barnes Construction Company, was engaged in the widening and construction of a bridge on highway US-23 immediately adjacent to plaintiff’s fur farm, and that in the doing of the work air hammers were continually used, causing extreme noise which resulted in disturbing plaintiff’s female mink and foxes to such an extent that they destroyed their young. Plaintiff claimed in his pleading that he made repeated “warnings, requests and demands” of the defendant, through her agents and employees, both before and during the whelping season of the mink and foxes, to refrain from the use of the air hammers, but that the operation was continued, resulting in the loss of young mink and foxes and injury to the breeding stock. A second count was included in the declaration alleging liability on the theory that defendant’s method of operation created a nuisance as to the plaintiff.
Defendant filed a special appearance and moved to dismiss on the ground that the declaration filed did not state a cause of action in either count. Said motion was argued orally and was granted by the trial judge on the ground that plaintiff’s pleading failed to contain an allegation setting forth a legal duty on the part of the defendant to accede to plaintiff’s warnings and requests. Defendant’s motion was author ized under Michigan Court Bule No 17, § 7 (1945), which provides that :
“Demurrers are abolished, and whenever any pleading at law or in equity is deemed to be insufficient in substance, a motion to dismiss or to strike or for judgment on the pleading may be made, or the objection may be made in the answer or reply, and whenever any such pleading is deemed to be indefinite, uncertain or incomplete, a further and better statement of the nature of the claim or defense or further and better particulars of any matter stated in any pleading may be ordered on motion, upon such terms in any case, as to costs and otherwise, as may be just.”
Section 9 of said rule, by amendment effective April 1,1953, empoAvers the trial court upon its own motion, Avhenever any pleading is deemed indefinite, uncertain or incomplete, to “require counsel to file a more certain, definite and complete pleading.”
Following the order of dismissal counsel for plaintiff filed motion to reconsider the matter, including therein a request that if the court found that plaintiff should apprise defendant, with greater particularity, of the acts on which he based his cause of action, that time should be given to amend the declaration. Such request apparently was granted, and an amended declaration Avas filed embodying the allegations set forth in the original declaration and specifically averring, in paragraph 7 thereof, as follows :
“That it then and there Avas the duty of the defendant, through her agents, employees and servants, to so conduct herself as to avoid loss and damage to property OAAmers then and there in their rightful possession and use of their property immediately adjacent to and adjoining the operation of the defendant, and to avoid by all reasonable, proper and lawful means doing such acts as would cause damage or loss to such persons, and more particularly to this plaintiff, and it was defendant’s duty legally to do so.”
Apparently by the paragraph quoted counsel for plaintiff sought to obviate the objection to the first declaration on which the trial court’s order of dismissal was based. The amended pleading was challenged by defendant, as failing to set forth a cause of action, by motion for judgment on the pleading authorized by the provision of Michigan Court Rule No 17 (1945), above quoted. The motion was granted and judgment was entered accordingly, said judgment reciting as follows :
“It is ordered and adjudged that the plaintiff take nothing by his suit and that the defendant recover of the plaintiff his costs and charges to be taxed and have execution therefor.”
From said judgment plaintiff has appealed, claiming that the trial court was in error in holding that defendant was entitled thereto for the reason set forth in her motion.
The question for consideration is whether the amended declaration alleged a cause of action against defendant. It was not essential to the sufficiency of the pleading that it set forth matters of evidence, or that it should anticipate defenses that might be raised. The general principles controlling in determining the sufficiency of such a pleading are stated in 41 Am Jur, Pleading, § 77, pp 344, 345, as follows:
“Notwithstanding changes that have been introduced by modern systems of pleading, it still remains the duty of the plaintiff to state his cause of action in his declaration, complaint, or petition, and the right of the defendant to be apprised thereby of the facts which are believed to constitute the plaintiff’s cause of action. The plaintiff’s allegation must be such, if proved as laid, as to show as a matter of law the essential elements of a cause of action in his favor, and a cause of action should be so stated that the court may determine its character as ex contractu or ex delicto, although it is not necessary for the plaintiff in so many words to state the character of his action as ex delicto or ex contractu. On the other hand, a pleading, properly drawn should contain no further allegations than thus indicated. It is not required that the plaintiff aver any fact which is not necessary to his right. He is not required to state the circumstances tending to prove the facts alleged, —the character of the evidence upon which he intends to rely, — or to anticipate matters of defense which the defendant may possibly set up. In general, the complaint or petition is sufficient if its allegations state facts upon which the plaintiff relies for a recovery, and if it adequately advises the defendant of the charge so as to enable him to prepare his defense.”
Of like import, it is said in 19 MLP, Pleading, § 8, p 12, that:
“In connection with declarations, as with other pleadings, there has been increasing liberality in upholding the pleading without regard to technical restrictions as to form. The principal requirements of a declaration are that it state a cause of action and that the facts be alleged with sufficient particularity to reasonably inform the defendant of the nature of the cause of action. Accordingly, our Supreme Court has said that the purpose of a declaration is to advise the defendant as to the nature of the plaintiff’s claim, and that the chief object of a declaration is to plainly apprise the opposite party of the cause of action and the claim of the plaintiff.”
Prior decisions of this Court are in accord with the substance of the above quotations. It has been repeatedly recognized that the purpose of a declaration is to apprise the opposite party of the cause of action and the claims of the plaintiff. Eberbach v. Woods, 232 Mich 392, 396; Michigan Aero Club v. Shelley, 283 Mich 401, 408 (1938 US Av R 134, 1 CCH Av 750); Leslie v. Mendelson, 302 Mich 95, 103; Rood v. Midwest Matrix Mart, Inc., 350 Mich 559, 563.
The amended declaration filed by plaintiff, in referring to defendant’s operation in the widening and construction of the bridge, averred that:
“Defendant knew, or should have known, that any unusually loud noises during the above-mentioned whelping season of 1953 would cause the female mink and foxes on the plaintiff’s fur farm to panic and destroy their young, and that notwithstanding such knowledge, the defendant, through her agents, employees and servants, wilfully, carelessly and negligently made use of air hammers continually in the course of the above mentioned widening and construction, causing for long periods of time extremely loud and continuous din, noise and racket which caused large numbers of the plaintiff’s female mink and foxes to panic and destroy their young.”
Plaintiff’s efforts to bring about a cessation of the noise of which he complained were set forth in paragraph 6 of the declaration, as follows:
“That the plaintiff made repeated warnings, requests and demands of the defendant, through her agents, employees and servants, before and during the whelping season to cease and desist from the use of the 2 air hammers; and that notwithstanding said warnings, requests and demands, the defendant, through her agents, employees and servants, with contumacious disregard, wilfully, wantonly, persistently and perversely made use of the 2 obnoxious air hammers, the operation and use of which created a very great din, noise and racket.”
The question is presented whether the language of plaintiff’s pleading may reasonably be construed as meaning that defendant, through her agents and employees, had knowledge of the probable consequence of a continuance of the excessive noise made by the air hammers, and, further, that she was so informed by plaintiff during the course of the construction work on the bridge, and while the injury to plaintiff’s breeding stock was actually occurring.
It will be noted that the allegations of paragraph 6, above quoted, do not refer merely to requests and demands, but also assert “repeated warnings.” Obviously the word “warning” implies more than the making of requests or demands. In Webster’s New International Dictionary the term is defined as:
“The act or fact of putting one on his guard, of intimating danger, evil consequences, or penalties, of an act or course of conduct, or of notifying in advance.”
Bearing in mind this definition of the word “warning,” we think that paragraph 6 of the amended declaration may properly be construed as claiming that defendant was apprised of the danger to plaintiff’s property resulting from the manner in which the construction work was conducted, and the probable ■consequences of the continuance of the use of the air hammers as actually operated, with the attendant noise. A consideration of the declaration in its entirety justifies the conclusion that the consequences •of defendant’s conduct as affecting the mink and foxes during the whelping season were the crucial matters involved at the times the warnings were given and the requests to desist were made. As a matter of practical interpretation we may conclude that the declaration charged that defendant was aware of the danger to plaintiff’s property, and was specifically advised with reference thereto. There is no basis for a different conclusion. No claim was made on behalf of defendant that she did not understand the basis for plaintiff’s cause of action. She did not move for a more specific declaration.
Without discussing the matter at greater length, we think the pleading was sufficient in substance to apprise defendant of the cause of action asserted and the claims of plaintiff with reference thereto. The language used must be given its ordinary significance. As before noted, it was not incumbent on plaintiff to anticipate possible defenses that may be raised in opposition to the recovery of damages, nor was plaintiff bound to set forth matters of evidence. Under' rules of pleading presently recognized, a liberal interpretation is both permissible and proper. Specific consideration of the sufficiency of the second count of the declaration is not required at this time.
In support of his claim that he is entitled to recover damages under the facts set forth in his declaration, plaintiff cites Hamilton v. King County, 195 Wash 84 (79 P2d 697), and Belly. Cray-Robinson Construction Company, 265 Wis 652 (62 NW2d 390). In each of said cases the right of the plaintiff to recover damages sustained by the owner of mink, due to .excessive noise resulting from acts of defendant during the whelping season, was recognized. It does not appear that in either case the sufficiency of the plaintiff’s pleading was raised. Such was the situation also in Szostak v. Chevrolet Motor Co., 279 Mich 603. A discussion of issues involved in the trials on the merits in said cases would serve no useful purpose.
For the reasons indicated it is our conclusion that plaintiff’s amended declaration, was sufficient in substance to state a cause of action, and to fairly inform defendant with reference to the basis thereof. The trial court was in error in entering judgment for de fendant on motion therefor. The cause is remanded to the circuit court with directions to set aside' said judgment, and for further proceedings. Pursuant to the Court Rule above cited, plaintiff may amend his pleading by stating with greater particularity the facts on which his claim of right to recover damages is based.
Dethmers, C. J., and Kelly, Smith, Black, and Voelker, JJ., concurred with Carr, J..
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Voelker, J.
The defendant copartners owned and wanted to sell a class “C” bar they ran in Detroit known as Homo’s Bar. They accordingly listed it with the plaintiff real-estate broker, under the written terms of which they granted the plaintiff the exclusive right for a term of 3 months to sell the busi ness for $45,000 upon terms there enumerated “or upon any other price, terms, or exchange to which I (we) [meaning defendants] may hereafter consent.” The agreement, dated October 8,1954, also contained this provision:
“If, during the said period, the business is sold by you or me or anyone else, or if you produce a purchaser ready, willing and able to purchase the business under the terms herein set forth, or if it shall be sold within 3 months after the expiration of this listing agreement to any person with whom you have had negotiations for the sale thereof, I (we) agree to pay you a commission of 10% of the sale price.”
During the 3-month period the plaintiff’s salesman, one Landa, talked in person or oyer the phone with a number of prospects, including Harold Brown, the stepson of Ottie Rankins, the ultimate purchaser. Upon expiration of the 3-month period but within 3 months subsequent thereto the defendants agreed to sell their bar to Rankins for $40,000. The plaintiff sued for his commission on this sale to Rankins on the theory that his stepson Brown was the agent for an undisclosed principal, Rankins, and won a jury verdict of $4,000 which survived a battery of usual defense motions: a reserved motion for a directed verdict, for judgment notwithstanding the verdict, and, in the alternative, for a new trial.
Defendants in their appeal urge that the court erred as follows: in failing to direct a verdict of no cause of action because of a total lack or insufficiency of proofs on the issue of agency or further that, indeed, nlaintiif or his salesman had ever had any negotiations with Brown in any case; in its charge to the jury, both in what was given and for certain re quested instructions it refused; and in admitting hearsay evidence. Lastly they urge that the verdict was contrary to the great weight of the evidence.
We do not propose to dissect this record or burden this opinion to show all the various “negotiations” claimed at the trial to have been had by plaintiff and his salesman with Brown concerning the possible purchase of this bar, or as bearing on Brown’s possible agency for the ultimate purchaser, Rankins, more than to say that to our mind there was adequate competent evidence to go to a jury on these issues. Plaintiff’s salesman testified that he had a series of telephone conversations (from 6 to 9) with Brown, initiated by the latter, during which he told Brown all about the place; that he offered to take Brown to visit the place but that he declined; that Brown told him he was himself in the retail bar business ; that they also discussed the possible purchase of other bars also listed with plaintiff. Another witness, barkeep Bacon, said he met Brown when the latter came to his bar interested in purchasing it; that Brown came 7 or 8 times and one time brought his stepfather, Rankins, who spoke to Bacon of the interest “we” have in purchasing a bar, and whom Bacon also showed around the place, which was shortly sold elsewhere; and finally that he had seen Brown working behind the bar at Momo’s Bar after the sale to Rankins.
Plaintiff testified that upon hearing that Rankins was dickering directly with one of the bar owners he called upon the defendant Raicevieh at the bar on January 19,1955 (shortly after the 3 months was up), and then told him that Brown was representing Rankins and that Brown was Rankins’ stepson who lived under the same roof; that defendant, affecting surprise, thereupon telephoned Brown, who appeared promptly and, during subsequent conversation, conceded that plaintiff’s salesman had told him about tbe place; and that warm words presently ensued during which plaintiff warned defendant he would hold him to his agreement if he sold the place to Rankins without paying him his commission — ■ which he nevertheless did within a week’s time.
Also of some significance is the fact that the price finally paid by Rankins for the bar, $40,000, was just $500 under the net defendants would have received anyway had the sale been made in accordance with the listing, less plaintiff’s commission, namely, $45,-000 with a $4,500 commission to plaintiff. Of further significance is the fact that neither Brown nor Raicevich denied the agency charged by plaintiff either during the noted conversation at the bar just before it was sold or later at the trial. We have already noted that Raicevich knew where to reach Brown and was able to summon and produce him by phone in a few minutes.
Brown did not testify at the trial but his stepfather Rankins did, denying that Brown was his agent, but admitting on cross-examination that he, Rankins, worked for a time as a bartender in a tavern partly owned by Brown before the latter ultimately disposed of his interest (the witness did not know exactly when); that he trusted Brown’s judgment and superior experience; and that Brown managed the new place nights and at all times during the absence of Rankins; and that Brown was present when the deal was closed for the purchase of the bar. A woman also testified that it was she who first told Rankins of the availability of the bar. Defendants themselves denied all knowledge of any agency. Defendant Raicevich in his testimony did not deny or mention the presale “showdown” conversation charging agency held at the bar as earlier testified to by plaintiff. As noted, Brown did not testify. • Tbe jury was evidently unimpressed by the defense story and found for plaintiff.
Defendants urge that the testimony of plaintiff’s salesman as to negotiations had with Brown over the telephone was inadmissible as hearsay to bind these defendants. We cannot agree. The 2 main issues in this case were whether plaintiff “negotiated” with a purchaser, not whether these negotiations were the procuring cause of any sale (although we feel that an arguable testimonial issue was also framed on that score), and further whether, in this case, the negotiations had with Brown were on behalf of an undisclosed principal, Rankins. We think that anything bearing on these 2 disputed issues was properly admissible.
Despite the rather strong evidence and permissible inferences here that one of defendants (the other partner was in Florida) probably knew all along that Brown was “fronting” for Rankins (and, for that matter, that Rankins was to some extent also probably “fronting” for Brown, who already owned an interest in a tavern, before the properly inquisitive liquor control commission), and further despite the strong overtones in this record that this whole clumsy maneuver was planned to prevent the plaintiff from getting his commission and at the same time make the sale more attractive, all at no substantial extra cost to defendants — despite all this, it was not necessary to his case that plaintiff prove defendants’ prior knowledge of Brown’s agency for Rankins (as he might possibly have had to do had his action sounded in fraud) but only that there were prior negotiations with Brown and that such an agency may have existed. Therefore the evidence complained of was competent and properly admitted. If an agency cannot be proved, as was done here, then an invulnerable new “straw man” method has been found to cheat real-estate men out of their commissions. See, generally, Brooks v. Leathers, 112 Mich 463; Parker v. Davis, 178 Mich 93; Decker v. Widdicomb, 137 Mich 331.
On the issue of claimed faulty instructions and the failure of the trial court to give certain requested instructions, we can, perhaps, best quote from the painstaking opinion of the trial judge, as follows:
“Defendants’ requests number 1, 2 and 3 are founded on the theory that plaintiff must have been shown to be the procuring cause [of the sale]. The cases cited thereunder are cases that involve a different set of facts than in the case at bar. The cases referred to and the law applicable, to support defendants’ requests 1, 2 and 3, did not involve an exclusive listing wherein there was a provision, as there is here, relative to a sale ‘within 3 months after the expiration of this listing agreement to any person with whom you have had negotiations for the sale thereof.’
“Request number 4 is set up on a basis of facts not testified to nor shown in the proofs — no showing of any breaking off of negotiations; in fact, this is contrary to the claim of the defendants, which was that there were no negotiations.
“Number 5: The request is based upon the law relative to a salesman or real-estate agent being the procuring cause of a sale. That law is not applicable under the theory of this case, which was sent to the jury solely upon the question of whether or not there had been any negotiations with the subsequent purchasers.
“Request number 6 is likewise based upon the theory of a procuring cause, which has heretofore been shown is not the theory of this case, and is contrary to the theory upon which the listing agreement is based.
“Request number 7: This is a request not in accordance with either the claims of the plaintiff or the testimony in the case. The listing, exhibit 1, does not provide, as a condition, that the one who is involved is to be shown to have negotiated and entered into an agreement, bnt, rather, merely to have had negotiations. Request number 7 is based upon a concept that is foreign to the testimony in this case, in that the request would have had the court instruct the jury that the plaintiff ‘must prove by a preponderance of the evidence that Harold Brown was the legal agent of the purchaser, with power to negotiate and enter into agreements on his behalf.’
“It was not necessary that it be shown that Harold Brown had the power to enter into any agreement whatsoever, on behalf of the prospective purchaser. To that extent the requested charge was improper to be given, and was properly refused.
“The court submitted this case to the jury on the one .question, whether or not there were negotiations conducted on behalf of Rankins by one authorized to conduct negotiations. There was ample testimony from all the proofs on which the jury could have found an affirmative answer to that question. They so found and the verdict shall stand. Motion for new trial is denied; motion for judgment non obstante is denied; judgment shall enter in favor of the plaintiff against the defendants.” (Emphasis by trial court.)
From the foregoing it follows that in our opinion the verdict of the jury was not contrary to the great weight of the evidence. Indeed, any other verdict might have beem Affirmed, with costs awarded to plaintiff.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred.
See CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1957 Cum Supp § 27.146Í et seq.).—Reporter. | [
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Boyle, J.
We granted leave in this case to consider whether an award of "exemplary and punitive” damages under Michigan’s libel statute impermissibly duplicates an award of actual damages for injury to feelings arising from the libel. In addressing that question, we reaffirm that "exemplary and punitive” damages under the libel statute are purely compensatory in nature, but hold that their availability requires a showing of common-law malice. We further hold that, under proper instruction, a jury may award exemplary and punitive damages that are not duplicative of actual damages for injury to feelings. Because exemplary and punitive damages were awarded in this case in the absence of a proper malice instruction, we affirm the Court of Appeals judgment remanding for a new trial on damages, but modify that decision in accordance with the principles set forth below.
I
Plaintiff Balfour Peisner, an attorney, brought this action against defendants The Detroit Free Press and its reporter Louis Heldman claiming actual and punitive damages for libel arising from the publication of an article written by Heldman that appeared in the Free Press in November, 1973. Following two pretrial appeals to the Court of Appeals on issues not relevant here, the case was tried before a jury and a verdict returned against Heldman and the Free Press jointly in the amount of $52,000 actual damages and against the Free Press alone for $100,000 "additional” damages. The Free Press’ motion for a new trial and remittitur was denied.
On appeal, the Court of Appeals rejected the Free Press’ arguments relative to liability, but remanded for a new trial on damages on the basis of a finding that the damage instructions given permitted the jury to compensate Peisner twice for injury to feelings, as an element of both "actual” and "exemplary and punitive” damages. The Court found that such a double recovery of mental injury damages was "a form of punishment which is not permitted in this state,” requiring a redetermination of damages to compensate Peisner only once for injury to feelings. Peisner v Detroit Free Press, Inc, 104 Mich App 59, 71; 304 NW2d 814 (1981). Judge V. J. Brennan concurred in a separate opinion expressing his concern with the confusion arising from use of the term "punitive” to describe a purely compensatory element of damages. Id., 71-72.
Peisner appealed to this Court, requesting, inter alia, that we rule true punitive (punishment-type) damages to be recoverable under the Michigan libel statute and that the Court of Appeals remand order be modified accordingly. No cross-appeal as to liability was taken by the Free Press.
In short, we reject Peisner’s invitation to depart from an established rule precluding true punishment-type damages in libel cases. We find however that common-law malice is a prerequisite — unsatisfied in this case — to recovery of "exemplary and punitive” damages for libel. We affirm the judgment of the Court of Appeals, but remand for a new trial as to punitive and exemplary damages only.
II
The starting point in our analysis is § 2 of the Michigan libel statute, MCL 600.2911; MSA 27A.2911, which in separate subsections provides for the recovery of "actual” damages and "exemplary and punitive” damages:
"(2)(a) Except as provided in (b), in actions based on libel or slander the plaintiff is entitled to recover only for the actual damages which he has suffered in respect to his property, business, trade, profession, occupation, or feelings.
"(b) Exemplary and punitive damages shall not be recovered in actions for libel unless the plaintiff, before instituting his action, gives notice to the defendant to publish a retraction and allows a reasonable time to do so, and proof of the publication or correction shall be admissible in evidence under a denial on the question of the good faith of the defendant, and in mitigation and reduction of exemplary or punitive damages. The retraction shall be published in the same size type, in the same editions and as far as practicable, in substantially the same position as the original libel.”
Subsection (a) defines "actual damages” to include damages suffered in respect to feelings, while subsection (b) permits recovery of "exemplary and punitive damages” provided a request for retraction is made and a reasonable time allowed for the defendant to publish the retraction. The publication of such a retraction does not preclude an award of exemplary and punitive damages, but is admissible on the question of defendant’s good faith and in mitigation and reduction of such damages.
At first blush the use of the terms "exemplary and punitive” suggests a legislative intent to permit an award of damages — in addition to actual damages — for the purposes either of punishing (i.e., specifically deterring) defendant or of making an example of defendant for the benefit of other potential purveyors of libel (i.e., generally deterring). The history of that provision and the Michigan cases interpreting it, however, reveal that not to be the case.
Even before the original version of our libel statute was enacted, this Court had established the principle that "vindictive or exemplary” damages for libel are merely a species of "actual” (i.e., compensatory) damages awarded to compensate plaintiff for the increased injury to feelings directly attributable to defendant’s fault in publishing the libel:
"It is in connection with the various degrees of blameworthiness chargeable on wrong-doers, that the discussions have arisen upon the subject of vindictive or exemplary damages, which, inasmuch as they rest upon actual fault, are by some authorities said to be designed to punish the wrong intent, while, according to others, the damages usually so called are only meant to recompense the sense of injury which is in human experience always aggravated or lessened in proportion to the degree of perversity exhibited by the offender. While the term exemplary or vindictive damages has become so fixed in the law that it may be difficult to get rid of it, yet it should not be allowed to be used so as to mislead, and we think the only proper application of damages beyond those to person, property or reputation, is to make reparation for the injury to the feelings of the person injured. This is often the greatest wrong which can be inflicted, and injuréd pride or affection may, under some circumstances, justify very heavy damages.” Detroit Daily Post Co v McArthur, 16 Mich 447, 452-453 (1868).
See also Scripps v Reilly, 38 Mich 10, 23-24 (1878).
The first version of the libel statute, enacted in 1885, omitted any reference to injury to feelings as an element of actual damages. Perhaps due to Justice Campbell’s criticism of that omission in Park v The Detroit Free Press Co, 72 Mich 560; 40 NW 731 (1888), the Legislature in 1895 added injury to feelings as an element of actual damages, separate from the existing provision for "exemplary or punitive” damages. Thus, beginning with the 1895 enactment, all reenactments and compilations of the libel statute through the present-day version have provided for recovery both of actual damages — including compensation for injury to feelings — and of "exemplary or punitive damages.”
Notwithstanding the separate treatment of "actual” injury-to-feelings damages and "exemplary or punitive damages” in the statute, this Court continued to interpret the terms "exemplary or punitive” as referring to damages intended solely to compensate plaintiff for the increase in injury to feelings attributable to defendant’s fault (or malice, in the common-law sense) in publishing the libel. See, e.g., Long v Tribune Printing Co, 107 Mich 207; 65 NW 108 (1895); Boydan v Haberstumpf, 129 Mich 137, 140; 88 NW 386 (1901); Poledna v Bendix Aviation Corp, 360 Mich 129, 144; 103 NW2d 789 (1960).
Because the Legislature, cognizant of this longstanding judicial gloss limiting exemplary and punitive damages to a compensatory role, has on several occasions through the years reenacted the libel statute without change, we conclude the Legislature intended that any award of "exemplary and punitive” damages comport with the established common-law gloss on those terms. Indeed, the latest reenactment of the libel provision in 1961 was accompanied by a committee comment stating that the new enactment was to be "considered in light of the interpretation of the present statute.” See Postill v Booth Newspapers, Inc, 118 Mich App 608, 629; 325 NW2d 511 (1982), lv den 417 Mich 1050 (1983).
In reaffirming that both "actual damages” for injury to feelings and "exemplary and punitive damages” are intended only to compensate, we stress that these two categories of compensation damages are independent. The difference between them was highlighted by Justice Wiest in a case involving assault damages, Wise v Daniel, 221 Mich 229, 233-234; 190 NW 746 (1922):
"If a cow kicks a man in the face the consequent physical hurt may equal that from a kick in the face with a hob-nailed boot, but the 'cussedness’ of the cow raises no sense of outrage, while the malicious motive back of the boot kick adds materially to the victim’s sense of outrage. If a man employs spite and venom in administering a physical hurt he must not expect his maliciousness to escape consideration when he is cast to make compensation for his wrong. If the defendant maliciously inflicted the injury then the jury had a right to take into consideration such fact together with all the circumstances disclosed and award such sum by way of compensation as the plaintiff ought to receive, and the defendant ought to be made to pay.”
In the libel context, actual damages for injured feelings are comparable to those attributable to the kick by the cow, i.e., the plaintiff is compensated for injured feelings attributable simply to the fact and effect of the libel. Exemplary and punitive damages, however, compensate for the incremental injury to feelings attributable to the sense of indignation and outrage experienced by the plaintiff due to the defendant’s bad faith or ill will in publishing the libel — i.e., the "malicious motive back of the boot kick.”
Thus, while both types of damages do indeed compensate for injured feelings, exemplary and punitive damages pick up where actual damages leave off by in effect compensating the plaintiff for injured feelings attributable solely to the egregiousness of defendant’s conduct. To avoid confusing these two components of mental injury damages, thereby leaving open the possibility of double recovery for the same element, we urge that instructions be formulated to specify both "actual” damages for injured feelings and "exemplary and punitive” damages (for incremental injury to feel ings), with a direction to the jury permitting them to increase the actual damages award with exemplary and punitive damages only if the required elements (discussed below) are established. We suggest that development of a special verdict form directing the jury to address the discrete issues that must be resolved in cases involving such exemplary and punitive damage awards would assist both the deliberative process and the task of judicial review.
Ill
By our ruling above, we necessarily reaffirm that exemplary and punitive damages for libel cannot be awarded in the absence of a finding that the defendant acted with common-law malice — in the sense of ill will or bad faith — in publishing the libel. This principle, most recently stated by this Court (with respect to medical malpractice) in Veselenak v Smith, 414 Mich 567, 574-575; 327 NW2d 261 (1982), also has a long history of application in libel cases. See, e.g., Orth v Featherly, 87 Mich 315, 321; 49 NW 640 (1891) ("[Plaintiff] was entitled to recover punitive damages, if the facts proved establish express and wanton malice”); Couch v Mining Journal Co, 130 Mich 294, 297; 89 NW 936 (1902) ("[Whether plaintiff] was entitled to punitory damages would depend upon whether the publication was malicious . . .”); Lawrence v Fox, 357 Mich 134, 146; 97 NW2d 719 (1959) ("The existence of ill will or the absence of honest belief . . . may affect the measure of damages to be imposed, particularly as to punitive damages . . .”). See also Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 419; 295 NW2d 50 (1980). Since we define exemplary and punitive damages as compensation for injured feelings at tributable solely to defendant’s bad faith or ill will (i.e., common-law malice), the foregoing rule simply implements our definition of exemplary and punitive damages in the form of a requirement of proof.
We recognize that a private defamation plaintiff must face an imposing array of barriers to recover exemplary and punitive damages. In this case, for example, plaintiffs were required to prove constitutional "actual malice” — i.e., knowledge of falsity or reckless disregard for the truth — simply to defeat defendants’ qualified privilege to report on matters of public interest and thereby establish liability for actual damages. Under the principles we adhere to today, an award of exemplary and punitive damages further requires the plaintiffs to prove compliance with the statute’s retraction request procedure as well as defendant’s common-law malice in publishing the libel. We do not find these extra burdens unreasonable, however, in light of the special significance attached to the reporting of matters in the public interest. In essence, our balance is struck to limit the reporter acting recklessly, but in good faith, to liability for actual damages only, while the reporter acting recklessly and in bad faith must bear the additional liability for exemplary and punitive damages. This scheme protects the legitimate interests of both constituencies, providing full and fair compensation to plaintiffs while avoiding unduly burdensome damage awards, save in the exceptional case where the defendant is motivated by ill will or bad faith.
IV
In the instant case, the trial judge gave the following instructions regarding the award of actual damages: any of those elements of damage which you determine that the Plaintiff is reasonably certain to sustain in the future.
"Now, if you decide that the Plaintiff husband is entitled to damages, it is your duty to determine the amount of money which reasonably, fairly and adequately compensates him for each of the elements of damage which you decide has resulted from the publication by the Defendant. You should include each of the following items of damage which you decide have been sustained by the Plaintiff to the present time, and they include:
"The actual damages which the Plaintiff has suffered in respect to his property or business, trade, occupation or feelings, his mental anguish, his denial of social pleasures and enjoyment, his embarrassment, ridicule, humiliation, mortification or fear. You may also include
"Now, which, if any, of those elements of damage has been proved is for you to decide. But you have to decide that based upon evidence and not upon speculation, not upon guess and not upon conjecture. The amount of money to be awarded for certain of these elements of damage — such as: mental anguish, denial of social pleasures, embarrassment, mortification and ridicule and things like that — the amount of money awarded for those elements can’t be proved in a precise dollar amount. The law leaves both amounts to your sound judgment. But your verdict must be solely to compensate the Plaintiff for his damages and not to punish the Defendants.”
As to exemplary and punitive damages, the judge further instructed:
"Now, members of the jury, the Michigan statute which I have just quoted mentions punitive damages. Now, under our law — and I want to correct any possible misimpressions — under our law the purpose of these 'punitive damages’ is not to punish the Defendants] for their misdeeds. The purpose of these damages, which I prefer to refer to as additional damages rather than punitive damages, is to compensate the Plaintiffs for injuries suffered by them because of the Defendants’ actions.
"I charge you, that although the focus is upon the Plaintiff’s injuries, in measuring these additional and exemplary damages, the focus is on the Defendants’] actions in determining if these additional damages should be awarded.
"It has long been the position of the Courts of Michigan that the sting of libel will be much greater when the Defendants have acted with either knowledge of the falsity of the material, or with a reckless disregard for the truth. Since the injury is greater because of the Defendants’] actions, the Plaintiffs are entitled to recover greater damages than the actual damages. And this is what this punitive damages, which I referred to as additional damages means.
"If you also find that the Plaintiff, Balfour Peisner, has established by a clear and convincing evidence that the Defendants published the article knowing the facts stated in it were false, or that the Defendants published the article with a reckless disregard for whether the facts stated were false or not, then you may also award him exemplary or additional damages, as I have explained them to you before. Such additional damages may be awarded only if the evidence of the known falsity or reckless disregard for the truth is clear and convincing. A simple preponderance of evidence which is sufficient in the actual damages, is not sufficient to award additional damages.
"If you also decide that the Plaintiff, Mr. Peisner, is entitled to what I have labeled additional damages because the publishers of the — I’m sorry. Because the publisher knew that the facts were false or because the article was published with a reckless disregard for the truth, then you may award additional damages to the Plaintiff Peisner, and these additional damages are allowed to compensate him because the sting of libel is much greater — it’s made much greater when the Defendants have acted with knowledge of the falsity.
"You may estimate such additional damages in order to fairly compensate the Plaintiff for the purposes of such additional damages. As I said, although they’re called punitive, it’s not to punish the Defendants.”
We commend the trial judge’s effort to adhere to our earlier cases in fashioning both sets of instructions.
A. Actual Damages •
Our rule confining exemplary and punitive damages to a purely compensatory role necessarily limits the permissible scope of actual damages in libel actions. This has led to understandable confu sion, since actual damages for injury to feelings would appear to encompass any award for "compensatory” exemplary and punitive damages. See Veselenak, supra, 414 Mich 576-577. We avoid that overlap, however, by defining exemplary and punitive damages as compensating only the incremental injury to feelings attributable to defendant’s malice. Thus, while in fact both "actual” and "exemplary and punitive” damages compensate the plaintiff, the latter operates to increase "actual” compensation only in cases where the defendant is proved to have acted with common-law malice towards the plaintiff.
The instruction on actual damages given in this case accurately sets forth the elements of actual injury to feelings as they are defined in this state; and the jury was told that additional damages were not to punish the defendant. While an instruction that limited the award of actual damages to injury arising from the fact and effect of the libel might have been more accurate, we find that the instructions properly expressed the distinction between actual and exemplary and punitive damages. The jury was admonished that the latter category must be compensatory, and we therefore find no reversible error in this regard.
B. Exemplary and Punitive Damages
Under our rule defining exemplary and punitive damages with reference to defendant’s common-law malice, we find the instruction given defective. Rather than instructing the jury to find common-law malice (bad faith or ill will) toward the plaintiff as a prerequisite to awarding exemplary and punitive damages, the judge instructed that a finding of constitutional actual malice (knowledge of falsity or reckless disregard for the truth) would justify such an award. While a finding of "actual malice” (to establish liability) may in some instances supply the elements necessary for a finding of "common-law malice,” the lack of congruence between the two standards requires that the jury be instructed specifically on common-law malice — in the sense of ill will or bad faith towards the plaintiff — as a prerequisite to this increased recovery.
V
In sum, we affirm the judgment of the Court of Appeals remanding for a new trial solely on the issue of damages, but modify that decision in accordance with the principles set forth in this opinion. Because the jury was not properly instructed on the necessity for a finding of common-law malice as a prerequisite to an award of exemplary and punitive damages the issues to be tried on remand are the existence of any common-law malice on the part of either or both of the defen dants in publishing the article, and, if common-law malice is shown, the existence and amount of any incremental injury to feelings attributable to such malice to be compensated by exemplary and punitive damages increasing the award of actual damages.
Williams, C.J., and Kavanagh, Ryan, Brickley, and Cavanagh, JJ., concurred with Boyle, J.
Levin, J., concurred in the result only.
Peisner’s wife joined in the action with a derivative claim not at issue in this appeal. Unless otherwise specified, the name "Peisner” in this opinion refers to Balfour Peisner alone and the name "Free Press” refers to both the newspaper and its reporter Heldman.
Peisner v Detroit Free Press, Inc, 68 Mich App 360; 242 NW2d 775 (1976), lv den 399 Mich 825 (1977); Peisner v Detroit Free Press, Inc, 82 Mich App 153; 266 NW2d 693 (1978).
Peisner’s wife was awarded $5,000 in actual damages against both defendants. The trial judge, Wayne Circuit Judge Harold Hood, denominated the "exemplary and punitive” damage component as "additional damages” in the jury charge in order to eliminate the obvious connotation of punishment in the term "punitive”:
"Now, members of the jury, the Michigan statute which I have just quoted mentions punitive damages. Now, under our law — and I want to correct any possible misimpressions — under our law the purpose of these 'punitive damages’ is not to punish the Defendants] for their misdeeds. The purpose of these damages, which I prefer to refer to as additional damages rather than punitive damages, is to compensate the Plaintiffs for injuries suffered by them because of the Defendants’ actions.”
Judge Brennan suggests the term "punitive” be removed from our legal parlance in recognition of the longstanding disfavor of punishment-type damages in Michigan jurisprudence. 104 Mich App 72. While we share Judge Brennan’s desire to eliminate an unnecessary source of confusion for juries already saddled with complex and unfamiliar legal rules, and join him in urging the Legislature to avoid unnecessary uses of that term, our opinion today should not be interpreted to foreclose the Legislature’s authority to prescribe the availability of true "punitive” (i.e., punishment-type) damages either through express statutory language acknowledging the punishment rationale or simply by permitting awards, for example, of attorney fees or treble damages.
We disapprove of the Free Press’ attempt to have this Court review its arguments as to liability in the absence of a cross-appeal. Our appellate procedure is designed to focus the issues on appeal and provide the parties with an opportunity to fully brief and argue those issues. This purpose is frustrated by the injection of new issues in the answering brief. Appellees wishing to challenge rulings adverse to them should do so directly by way of a cross-appeal.
1885 PA 233 provided:
"Section 1. The People of the State of Michigan enact, In any suits brought for the publication of a libel in any newspaper in this State the plaintiff shall recover only actual damages if it shall appear that the publication was made in good faith and did not involve a criminal charge, and its falsity was due to mistake or misapprehension of the facts, and that in the next regular issue of said newspaper after such mistake or misapprehension was brought to the knowledge of the publisher or publishers, whether before or after suit brought, a correction was published in as conspicuous a manner and place in said newspaper as was the article sued on as libelous.
"Sec. 2. In any action or suit for the publication of a libel in any newspaper in this State, the plaintiff shall not be entitled to recover, in addition to actual damages, any greater sum than five thousand dollars.
"Sec. 3. The words 'actual damages’ in the foregoing section shall be construed to include all damages the plaintiff may show he has suffered in respect to his property, business, trade, profession or occupation, and no other damages.”
1895 PA 216.
1895 PA 216; 1897 CL 10423, 10425; 1915 CL 12757, 12759; 1915 PA 314, ch XX, §§21, 23; 1929 CL 14471, 14473; 1948 CL 620.21, 620.23; 1961 PA 236, § 2911(2).
We ascribe no importance to the change in statutory language from "exemplary or punitive damages” to "exemplary and punitive damages” in the 1961 reenactment of the provision (emphasis added). The committee comment that accompanied the reenactment offers no explanation for the change, and simply states in full:
"This section is drawn entirely from the present statute and should therefore be considered in light of the interpretation of the present statute.”
Nor do we deem it significant that the statute uses two terms— "exemplary” and "punitive” — where one would suffice. The history of punitive damages in Michigan case law demonstrates that these and other terms denoting punitive damages were often used interchangeably or in multiple combinations. See, e.g., Orth v Featherly, 87 Mich 315, 321; 49 NW 640 (1891):
"Where actual malice is shown in an action for slander or libel, the jury may always give punitive damages .... The amount of such exemplary damages must rest largely in the discretion of the jury, under proper instructions from the court, dependent upon the facts of each particular case.” (Emphasis added.)
See generally Wade, The Michigan Law of Damages at 27-1. Thus, while ordinarily the use of distinct terms suggests that distinct meanings are intended, in this context we find that both terms refer to the same category of damages.
Our holding today does not conflict with our ruling in Veselenak v Smith, 414 Mich 567, 576-577; 327 NW2d 261 (1982), that actual damages and exemplary damages in the medical malpractice context necessarily overlap:
"These distinctions are, at least, legally unsound. Semantic niceties aside, juries are not asked to differentiate between mental states, such as shame, mortification, humiliation and indignity. Juries are asked to compensate mental distress and anguish, which flows' naturally from the alleged misconduct and may be described in such terms as shame, mortification, humiliation and indignity. In addition, if the plaintiff is being compensated for all mental distress and anguish, it matters not whether the source of the mental distress and anguish is the injury itself or the way in which the injury occurred.” (Emphasis in original.)
In the absence of a legislative prescription for exemplary damages, we held in Veselenak that compensatory-type exemplary damages are merely a component of actual damages attributable to defendant’s conduct and hence should not be separately awarded.
In the libel context, by contrast, the Legislature has provided separately for actual damages for injury to feelings and "exemplary and punitive” damages. In keeping with the reasoning applied in Veselenak, we define exemplary and punitive damages in this context to be a component of compensatory damages awardable only where defendant’s conduct amounts to common-law malice.
Although not intended as "punishment” damages, "exemplary and punitive damages” as we define them undoubtedly operate indirectly to punish. A libelous article published in good faith will not command as high a damage award as the identical article published with malicious intent, precisely because the latter will provide grounds for an award of exemplary and punitive damages. The latter defendant is therefore "punished” by a higher damage award attributable solely to ill will. We avoid characterizing the increased award as punishment, however, by requiring that such exemplary and punitive damages be measured by plaintiffs outrage rather than by defendant’s maliciousness. As such, we merely compensate a libel plaintiff for all mental injury suffered, including that attributable to defendant’s malicious intent, and therefore avoid the problems associated with an award of punishment-type libel damages under the state and federal constitutions as well as under judicial policy relating thereto. See Note, The constitutionality of punitive damages in libel actions, 45 Fordham L R 1382 (1977).
The Supreme Court in Gertz v Robert Welch, Inc, 418 US 323, 347; 94 S Ct 2997; 41 L Ed 2d 789 (1974), left it for the states to define their own standards of liability in private figure defamation actions, requiring only that liability without fault not be imposed. In the wake of that decision, our courts have continued to apply the common-law rule requiring that a private defamation plaintiff prove "malice” to defeat the qualified privilege to report on matters of public interest; however, our courts have not been unanimous in determining which standard of malice — common law or constitutional — is the appropriate standard after Gertz. See Peisner v Detroit Free Press, 82 Mich App 153, 163-164; 266 NW2d 693 (1978) (constitutional standard); Postill v Booth Newspapers, Inc, 118 Mich App 608, 620; 325 NW2d 511 (1982) (common-law standard). Because this issue was not raised on appeal, we merely note our approval of the more recent pronouncements in courts applying our statute that have opted for application of the constitutional standard in this type of case. See Gaynes v Allen, 128 Mich App 42; 339 NW2d 678 (1983); Schultz v Newsweek, Inc, 668 F2d 911, 918 (CA 6, 1982); Apostle v Booth Newspapers, Inc, 577 F Supp 962 (WD Mich, 1984).
We assume without deciding that the publishing of an article with knowledge of falsity — establishing liability for actual damages under the constitutional "actual malice” standard — would necessarily establish bad faith, therefore proving the common-law malice required to justify an award of exemplary and punitive damages. A reporter or publisher acting with reckless disregard for the truth, however, might be held liable under the constitutional standard without necessarily incurring liability for exemplary and punitive damages because the reporter or publisher did not act in bad faith or with ill will towards the plaintiff. That the two standards are not congruent was recognized by the Supreme Court in Cantrell v Forest City Publishing Co, 419 US 245, 251-252; 95 S Ct 465; 42 L Ed 2d 419 (1974).
Plaintiffs also challenge the Court of Appeals finding of error with respect to Peisner’s reading to the jury defendants’ truth-defense pleading. The cases cited by the Court of Appeals to support the proposition that statements in pleadings are absolutely privileged address only the use of such statements as the basis for a libel action. See, e.g., Sanders v Leeson Air Conditioning Co, 362 Mich 692; 108 NW2d 761 (1961). Those cases are inapposite since clearly Peisner did not base this libel action on defendants’ responsive pleading.
In relevant part, our libel statute, MCL 600.2911(3); MSA 27A.2911(3), provides:
"If the defendant in any action for slander or libel gives notice in his justification that the words spoken or published were true, this notice shall not be of itself proof of the malice charged in the complaint though not sustained by the evidence.” (Emphasis supplied.)
A common sense reading of this provision leads us to conclude that where the only evidence of malice is defendant’s pleading of truth as a defense, the pleading is inadmissible. Since the Court of Appeals determined the error to be harmless due to other evidence of malice in the case, 104 Mich App 67, we find the pleading to be properly admissible as not "of itself proof of the malice charged in the complaint though not sustained by the evidence.” | [
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Ryan, J.
In a previous, underlying cause of action for personal injuries arising out of a plane crash, a joint and several judgment was rendered against plaintiff Piper Aircraft Corporation, defendant Logan, and defendants Berz. We are asked to determine whether, in this action for contribution, plaintiff Piper Aircraft Corporation may recover from defendants Logan and Berz such amounts as it has paid to the injured persons, over and above its prorata share, where the liability of defendants Berz is vicarious, predicated solely upon the aircraft owners statute, MCL 259.180a; MSA 10.280(1). We agree with the judgment of the Court of Appeals and hold that Piper Aircraft Corporation may have contribution against the defendants Berz.
I
Facts
This litigation had its origins in an airplane crash that occurred on March 29, 1969. A Piper Cherokee Six, manufactured by the Piper Aircraft Corporation, was being piloted by David W. Logan and carried four passengers, two of whom were George P. Schwartz and Gregory J. Schwartz. Logan had rented the plane from Milton H. Berz, Jr., and Mary J. Berz, doing business as Berz Flying Service (all collectively referred to as "Berz”). On January 2, 1970, George P. Schwartz and Judith P. Schwartz, and Gregory J. Schwartz and Judith M. Schwartz brought actions for personal injuries sustained by George P. and Gregory J. Schwartz in the aircraft accident. The Schwartzes sought a joint and several judgment against Piper, Logan, and Berz. It appears that the liability of Piper was predicated on a products liability theory based upon a claim of defective design of a fuel tank switch. The liability of Berz was based on 1958 PA 114, the aircraft owners statute, an amendment to the Aeronautics Code (1945 PA 327), MCL 259.180a; MSA 10.280(1).
Those actions were tried to a verdict before a jury and judgments were entered in favor of the plaintiffs on August 14, 1974.
The jury verdict in favor of Gregory J. Schwartz was in the amount of $136,500 against “defendants The Estate of David W. Logan, Deceased, Milton H. Berz, Jr. and Mary Jane Berz, Individually and doing business as Berz Flying Service, and Piper Aircraft Corporation, a foreign corporation, jointly and severallyThe jury also returned a verdict against the same defendants, jointly and severally, in favor of Judith M. Schwartz in the amount of $36,750, in favor of George P. Schwartz in the amount of $215,250, and in favor of Judith P. Schwartz in the amount of $57,750. The judgments provided for taxed-costs and for interest from the date of filing the complaint.
On August 26, 1974, Logan and Berz paid 50 percent of the judgments owed to Gregory J. Schwartz and Judith M. Schwartz, including principal and interest. On the same date, Logan and Berz paid an amount somewhat less than 50 percent of the judgments, in favor of George P. Schwartz and Judith P. Schwartz.
Over two years later, on January 4, 1977, shortly after this Court originally denied Piper’s application for leave to appeal, Piper paid the remaining 50 percent owing on the judgments in favor of Gregory J. Schwartz and Judith M. Schwartz, as well as costs and interest on costs. On the same date, Piper paid the balance of the judgments in favor of George P. Schwartz and Judith P. Schwartz.
Less than six months later, on June 21, 1977, Piper filed a complaint in the Oakland Circuit Court claiming, pursuant to MCL 600.2925; MSA 27A.2925, "contribution and/or recovery of payment beyond its pro rata share” from Berz and Logan, jointly and severally, in the amount of $44,049.06. Berz answered the complaint, admitting indebtedness to plaintiff Piper but only in the amount of $1,929.52. However, Berz explicitly denied that it was a joint tortfeasor with Piper, and averred that, as a result, MCL 600.2925; MSA 27A.2925 had no application to plaintiff’s alleged cause of action. Berz advises us, although without record support, that defendant Logan did not answer the complaint in this action for contribution, and that a default judgment has entered.
Piper moved for summary judgment on April 13, 1978, pursuant to GCR 1963, 117.2(2) and (3). The brief in support of Piper’s motion cited MCL 600.2925a(2); MSA 27A.2925(1)(2), the amended contribution statute. See fn 9. Berz answered Piper’s motion, again asserting that plaintiff and defendants were not joint tortfeasors and that Berz had been only vicariously liable to the Schwartzes by virtue of the aircraft owners statute. Berz also claimed that the amended contribution statute was applicable only to torts committed on or after January 1, 1975. On September 6, 1978, Berz filed a counter motion for summary judgment pursuant to GCR 1963, 117.2(1), claiming, in essence, that Berz was not a joint tortfeasor and that, as a matter of law, since it was not a joint tortfeasor, it was not liable for contribution.
After a hearing on the cross motions for summary judgment, the Oakland Circuit Court, by opinion dated October 6, 1978, and judgment dated October 24, 1978, denied Piper’s motion and granted Berz’ motion for summary judgment of no cause of action against Piper. Relying on this Court’s opinion in Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970), the trial court concluded that Berz was not a joint tortfeasor within the meaning of the contribution statute. Analogizing to the liability imposed upon an automobile owner under the civil liability act for negligent operation of the vehicle by another, MCL 257.401; MSA 9.2101, the trial court stated that the liability imposed on the owner of an aircraft was similar and that such liability is imposed after a finding of negligent operation on the basis of the passive fact of mere ownership of the aircraft. The trial court stated: "The fact that the owner’s negligence in this case was passive defeated a claim for contribution.”
Both Piper and Berz moved for rehearing, and on November 5, 1979, the trial court issued a supplemental opinion reaffirming its prior decision that plaintiff was not entitled to contribution. In its opinion, the trial court concluded that "[t]he rule in Michigan remains that an owner negligent only by reason of the owner liability statute is not a joint tortfeasor,” quoting Brinks v Chesapeake & Ohio R Co, 295 F Supp 1318, 1321 (WD Mich, 1969), and that since Piper and Berz were not joint tortfeasors, the right to contribution did not apply.
Piper appealed, and the Court of Appeals reversed the decision of the trial court. 111 Mich App 613; 314 NW2d 709 (1981). The Court of Appeals found that the contribution statute, MCL 600.2925; MSA 27A.2925, was dispositive of the case, stating that the joint judgment against all original defendants, Logan, Berz, and Piper, brought them within the provisions of the contribution statute. The Court noted that Piper had paid more than its pro-rata share of costs, interest, and principal in a judgment wherein all three original defendants were found jointly and severally liable. The Court of Appeals further stated that the time for defendant Berz to dispute the basis and extent of their liability was during the original suit in a cross-claim against Piper; it explained that once the joint judgment was rendered, it was too late for Berz to litigate the question of the extent of their liability as joint tortfeasors under the contribution statute. _
Berz moved for rehearing, which was denied on July 27, 1982. Berz then filed an application for leave to appeal here, and this Court granted leave on December 6, 1983. 418 Mich 879 (1983).
II
Analysis
We begin our inquiry with the statute that was in effect when the underlying cause of action in this case accrued. MCL 600.2925; MSA 27A.2925 provided:
"Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share is entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment. Joint tort-feasors who are summoned in as third party defendants pursuant to court rule may likewise be liable for contribution. No person may be compelled to pay to any other defendant an amount greater than his pro rata share of the entire judgment.” (Emphasis added.)
Piper asserts that it is entitled to contribution from Berz based upon two theories. First, the plain language of the contribution statute allows recovery. A money judgment was "recovered jointly” against Piper, Berz, and Logan. Piper paid more than its pro-rata share, and thus Piper may have contribution against Berz. Second, Piper avers that it is entitled to contribution on the basis of this Court’s decisions in Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970), and Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975).
Berz answered the motion for summary judgment as well as the complaint, asserting that Piper is not entitled to contribution because Piper and Berz were not joint tortfeasors. In addition, Berz, relying on Moyses, supra, appears to argue, although it is not entirely clear, that Piper is not entitled to contribution from Berz because Berz’ liability was passive rather than active, predicated solely on the aircraft owners statute, and cites Provencal v Parker, 66 Mich App 431, 436; 239 NW2d 623 (1976), that "[a] claim for indemnity will only lie against a party guilty of 'active’ negligence. . . .” (Emphasis supplied.)
For the reasons discussed below, we hold that Piper may have contribution against Berz, and we affirm the judgment of the Court of Appeals.
A
Berz concedes that the underlying cause of action was for a money judgment and that it was against two or more defendants, including itself. Berz claims, however, that it cannot be liable to Piper for contribution under § 2925 because it was not a joint tortfeasor.
The Legislature enacted the Revised Judicature Act as 1961 PA 236. Section 2925 of the act provided that whenever a money judgment had been recovered jointly against two or more defendants in an action for bodily injury, and when such judgment had been paid in part or in full by one or more of the defendants, each defendant who had paid more than his own pro-rata share was entitled to contribution with respect to the excess paid over his own pro-rata share. MCL 600.2925; MSA 27A.2925. Berz asserts that the Court of Appeals overlooked or disregarded this Court’s decision in Moyses, supra, wherein Berz thinks that this Court stated that the language of the statute clearly meant contribution may only be had from a joint tortfeasor.
A careful reading of the case, however, reveals that it did not so hold. What it held was that, under the second sentence of the first section of the statute, when contribution is sought against a third-party defendant who is summoned into the original action by a principal defendant being sued by the assertedly injured plaintiff, contribution will lie only if the principal defendant and the third-party defendant are joint tortfeasors.
The Moyses case, it must be conceded, has been the source of no small amount of confusion. In Moyses, the Court stated:
"When one speaks specifically of joint tortfeasors, he does not refer (a) to wrongdoers the liabilities of whom arise out of variant legal positions, the concurrently applied but legally different derelictions of whom make them severally responsible to the plaintiff in damages, or (b) to the acts or omissions of several who act independently rather than in concert, or (c) to those who may — under present rules of court — be joined as defendants, by the plaintiff (see GCR 1963, 206) and held responsible to him for damages sustained on account of their causally cooperating but non-joint acts or omissions, say by the negligence of one, the violation of a statute like the dramshop act by another, and the breach by still another of an express or legally implied warranty.” 383 Mich 331-332.
And,
"In general it was, and still is, that where two (or more) persons owe to another the same duty and by their common neglect of that duty such other is injured, the two (or more) have committed a joint tort and therefore are joint tortfeasors. The Legislature both in 1941 and 1961 presumably employed the phrase according to such specific meaning.” Moyses, p 329. (Emphasis added.)
This Court in Moyses then undertook to correct the "abominations” it saw in § 2925, that is, the failure of § 2925 to provide a substantive right in favor of a person jointly or severally liable, not by rewriting § 2925 but "simply by overruling the remnants of Michigan’s common-law rule which— loosely — has barred 'wrongdoers’ from the equitable right of contribution where, by the standards of equity, that right exists generally.” Moyses, p 329. See also Caldwell, 394 Mich 415-421.
In addition, the Moyses Court stated:
"From all this it must be assumed that the employment of 'joint tortfeasors,’ appearing as it does four times in §2925, was both advertent and exclusive of what in (3) of § 2925 ['An insurer of a person jointly or severally liable’] was permitted in favor of liability insurers only, that is, contribution arising out of a judgment against persons 'jointly or severally liable.’ In veritable sum, 'joint tortfeasors’ only, not other grades or types of severally liable tortfeasors, may upon third-party discretion of the court have contribution under the second sentence of §2925(1).” (Emphasis supplied.) Moyses, p 331.
It was the cause of action described in the second sentence of § 2925 about which Justice Black was so colorfully writing in Moyses — the sentence dealing with third-party practice. That sentence states: "Joint tortfeasors who are summoned in as third-party defendants pursuant to court rule may likewise be liable for contribution.” Plainly, it permits contribution only among "joint tortfeasors.” However, that sentence is not applicable to this case. Third-party practice is not involved here. Both Piper and Berz were joined as party defendants in the previous action, and joint and several judgments were entered against them. It is noteworthy that, although § 2925’s title is "contribution among joint tortfeasors,” the first sentence, the one at issue here, does not mention the word "joint tortfeasor” at all. It states simply that "whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury,” and the other conditions of recovery fulfilled, contribution may be obtained. See O’Dowd v General Motors Corp, 419 Mich 597; 358 NW2d 553 (1984); Sziber v Stout, 419 Mich 514; 358 NW2d 330 (1984).
In Caldwell v Fox, 394 Mich 401, 417; 231 NW2d 46 (1975), we stated:
"The general rule of contribution is that one who is compelled to pay or satisfy the whole or to bear more than his aliquot share of the common burden or obligation, upon which several persons are equally liable or which they are bound to discharge, is entitled to contribution against the others to obtain from them payment of their respective shares.”
We have also stated that the doctrine of contribution is founded on principles of equity and natural justice, and that the doctrine rests on the principle that "[w]hen the parties stand in aequali jure, the law requires equality, which is equity, and one of the parties will not be obliged to bear more than his just share of the common burden or obligation to the advantage of his co-obligors.” Lorimer v Julius Knack Coal Co, 246 Mich 214, 217; 224 NW 362; 64 ALR 210 (1929)._
That doctrine has been incorporated in the statute applicable here. The language of § 2925 is clear and unambiguous and authorizes contribution in an action such as the one before us, providing a judgment is "recovered jointly.” The statute does not require, at least under the first section thereof, that a claimant for contribution be a "joint tortfeasor.”
Here, the principal plaintiffs, the Schwartzes, obtained judgments against Logan, Berz, and Piper, jointly and severally. Those joint and several judgments were recovered in actions for bodily injury. Defendant and third-party plaintiff Piper paid greater than its pro-rata share. Therefore, Piper may seek contribution against the third-party defendant Berz in accord with the plain meaning of the statute.
B
Berz, although not explicitly, seemingly argues that it is not liable for contribution because its liability is clearly vicarious and passive in nature and arises solely by application of the aircraft owners statute, and thus cannot be joint with that of Piper.
The only case cited by Berz in support of its position is Provencal v Parker, 66 Mich App 431; 239 NW2d 623 (1976). In that case, the Court of Appeals held that a party seeking indemnity must be free from active or causal negligence. Berz seems to assert that since it is liable only by virtue of the aircraft owners statute, that it is not in aequali jure with Piper. See, generally, 18 Am Jur 2d, Contribution, §§ 38, 39, 55, and 56. In the first place, the jury found all party defendants to be jointly and severally liable. In the second place, pilot Logan, through whom Berz is liable under the aircraft owners statute, appears to be on equal footing with Piper. Thus, Logan and Piper appear to be in aequali jure.
More importantly, Piper’s theory of recovery against Berz is not based upon the theory of indemnity, but upon contribution. Indemnity and contribution are not one and the same. There are essential distinctions between contribution and indemnity. Langley v Harris Corp, 413 Mich 592, 596-599; 321 NW2d 662 (1982). See, generally, 18 Am Jur 2d, Contribution, § 2. As the Eleventh Circuit Court of Appeals noted, in Greyhound Lines, Inc v Cobb County, Georgia, 681 F2d 1327 (CA 11, 1982), the past and present vitality of the active/passive negligence doctrine dichotomy derives only from the doctrine of indemnification. The active/passive negligence doctrine does not apply to a claim for contribution.
As noted in Langley, supra, p 597, it has long been held in Michigan that a party seeking indemnity must plead and prove freedom from personal fault, and that has frequently been interpreted to mean that the party seeking indemnity must be free from active or causal negligence. We observed in Langley that where active negligence is attributable solely to another and one’s own liability arises by operation of law, the latter’s negligence is passive. However, the applicability of these statements to an action for contribution has neither been shown nor argued, nor do we see any basis, in the instant case, for extending the rules governing indemnity to actions for contribution. Berz has referred us to no case which would disallow contribution on the facts before us.
We hold that Piper may proceed with its action for contribution against Berz. Piper’s claim is squarely within the plain language and meaning of the statute. The statute requires no further interpretation. Furthermore, our decisions in Moyses and Caldwell are not to the contrary. Berz’ arguments concerning the distinction between active and passive tortfeasors, although a relevant inquiry in an action for indemnity, is simply not a meritorious argument in this action for contribution. As such, Piper may proceed with its claim for contribution.
The judgment of the Court of Appeals is affirmed.
Williams, C.J., and Kavanagh, Levin, Brickley, Cavanagh, and Boyle, JJ., concurred with Ryan, J.
David W. Logan is deceased, and the complaint filed in the instant case named Gerald M. Dumon as administrator of the Estate of Logan as a party defendant. An amended complaint, dated June 21, 1977, was filed alleging that James A. Logan was the successor to Dumon. We are advised that David W. Logan was uncollectible, that the Estate of Logan did not answer the complaint in the subsequent action for contribution, and that a default was entered.
MCL 259.180a; MSA 10.280(1) provides:
“(1) The owner or operator or the person or organization responsible for the maintenance or use of an aircraft shall be liable for any injury occasioned by the negligent operation of the aircraft, whether the negligence consists of a violation of the provisions of the statutes of the state, or in the failure to observe ordinary care in the operation, as the rules of the common law require. No person transported by the owner or operator or the person responsible for the maintenance or use of any aircraft as a guest without payment for such transportation shall have a cause of action for damages against the owner or operator or person responsible for the maintenance or use of the aircraft for injury, death or loss, in case of accident, unless the accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator or the person responsible for the maintenance or use of the aircraft, and unless the gross negligence or wilful and wanton misconduct of the owner or operator or the person responsible for the maintenance or use of the aircraft contributed to the injury, death or loss for which the action is brought.
"(2) 'Guest’ means any person other than an employee of the owner or registrant of the aircraft, or of a person responsible for its operation with the owner’s or registrant’s express or implied consent, being in or upon, entering or leaving the same, except any passenger for hire and except any passenger while the aircraft is being used in the business of demonstrating or testing. The sharing of expense shall not constitute a carriage for hire within the meaning of this act.
"(3) 'Person or organization responsible for the maintenance or use of an aircraft’ shall not include a mechanic who has performed work on or furnished materials, supplies or equipment for an aircraft or any employee of the mechanic when the mechanic is an independent contractor.” (Emphasis supplied.)
See MCL 257.401; MSA 9.2101 for similar provisions regarding motor vehicles.
Piper appealed; however, the Court of Appeals affirmed the trial court on July 22, 1976. This Court denied an application for leave to appeal, Schwartz v Estate of Logan, 398 Mich 804 (1976).
Specifically, concerning the judgments in favor of Gregory J. Schwartz and Judith M. Schwartz, on August 14, 1974, Logan and Berz paid 50 percent of: 1) the $136,500 judgment in favor of Gregory J. Schwartz; 2) the $38,060.75 interest due on the Gregory J. Schwartz judgment; 3) the $36,750 judgment in favor of Judith M. Schwartz; and 4) the $Í0,247.01 interest due on the Judith M. Schwartz judgment. With regard to the judgments in favor of George P. Schwartz and Judith P. Schwartz, Berz and Logan also paid, on August 26, 1974: 1) $78,846 on the $215,250 judgment in favor of George P. Schwartz; 2) 50 percent of the $60,018.76 interest owed on the judgment in favor of George P. Schwartz; 3) $21,154 on the $57,750 judgment in favor of Judith P. Schwartz; and 4) 50 percent of the $16,102.51 interest owed on the judgment in favor of Judith P. Schwartz.
Specifically, Piper paid: 1) $102,020.57 in partial satisfaction of the judgment in favor of Gregory J. Schwartz [$68,250 was attributed to principal, $30,073.13 was attributed to interest, $3,250 was attributed to costs, and $447.44 was attributed to interest on costs], 2) $26,083.34 in partial satisfaction of the judgment in favor of Judith M. Schwartz [$18,375 was attributed to principal, $7,708.34 was attributed to interest], 3) $185,785.28 in partial satisfaction of the judgment in favor of George P. Schwartz [$136,404 was attributed to principal, $49,219.68 was attributed to interest, $142 was attributed to costs, and $19.60 was attributed to interest on costs], 4) $49,801.23 in partial satisfaction of the judgment in favor of Judith P. Schwartz [$36,596 was attributed to principal, $13,205.23 was attributed to interest].
MCL 600.2925(4); MSA 27A.2925(4), repealed, 1974 PA 318, provided that "[a]ny claim for contribution hereunder must be asserted within 6 months after discharge by such party of the common liability, or payment of more than his pro rata share.”
In particular, Piper asserted that it was entitled to recover excess pro-rata payment to George P. Schwartz of $28,779 of principal, $4,053.08 of interest on the amount from August, 1974 to January 1, 1977, plus interest to the final date of determination of this complaint. Further, Piper asserted that it was entitled to recover excess pro-rata payments to Judith P. Schwartz of $7,721.25 of principal, $1,087.41 in interest from August, 1974 until January 1, 1977, plus interest to final date of determination of this complaint. Lastly, Piper contended that it was entitled to 50 percent of the costs ($100.82) in the case of George P. Schwartz and Judith P. Schwartz, as well as the costs ($1,625) taxed in the Gregory J. Schwartz and Judith M. Schwartz case, together with interest thereon for a total of $2,307.
By complaint filed February 18, 1982, Berz filed suit against Piper, an alleged active tortfeasor, seeking recovery on the theory of indemnity for all sums that Berz was required to pay as a result of the action based on the contribution statute. Berz prayed for a judgment requiring Piper to indemnify them "for any and all sums previously paid by them arising out of any or all claims” from Oakland Circuit Court Case No. 70-61000, which is one of the original actions brought by the Schwartzes against Piper, Logan, and the Berz. By order filed August 4, 1983, the Oakland Circuit Court granted Piper’s motion for summary judgment, relying on Provencal v Parker, 66 Mich App 431; 239 NW2d 623 (1976), and Langley v Harris Corp, 413 Mich 592; 321 NW2d 662 (1982). In Langley, this Court stated: "Indemnity serves to shift the burden of loss when equity so requires; however, the right can only be enforced where liability arises vicariously or by operation of law from the acts of the party from whom indemnity is sought.”
Piper asserts, although not based on the record before us, that the reason for the grant of summary judgment in its favor is that Berz’ statutory liability arose from the acts of pilot Logan, and not from the actions of Piper. Therefore, the Berz could not maintain an action for indemnity against Piper. Piper represents that this grant of summary judgment has not been appealed.
Repealed, 1974 PA 318. 1974 PA 318, §3 provides that the provisions of that amendatory act apply only to torts committed on or after January 1, 1975. The amendatory act provides, in relevant part:
"Except as otherwise provided in this act, when 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.” MCL 600.2925a(1); MSA 27A.2925(1)(1). (Emphasis supplied.)
Although not relevant to the inquiry before us, MCL 600.2925b; MSA 27A.2925(2) was subsequently amended by 1982 PA 147 to provide:
"In determining the pro rata shares of tort-feasors in the entire liability as between themselves only and without affecting the rights of the injured party to a joint and several judgment:
"(a) Their relative degrees of fault shall be considered.
"(b) If equity requires, the collective liability of some as a group shall constitute a single share.
"(c) Principles of equity applicable to contribution generally shall apply.”
Similarly, the predecessor act of § 2925, 1941 PA 303, 1948 CL 691.561, made no mention of "joint tortfeasor” when establishing the right of contribution between persons against whom a judgment has been received "jointly”:
"Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment: Provided, however, That no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment.”
Both the 1939 and the 1955 drafts of the Uniform Contribution Among Tortfeasors Act, 9 ULA, upon which the statute here involved is based, provide the substantive right of contribution for all who are jointly or severally liable for the same injuries. Moyses, 383 Mich 330. | [
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Cavanagh, J.
The common issue presented in these appeals is whether statements obtained after a defendant has requested appointment of counsel at arraignment are admissible pursuant to the principles enunciated in Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), and People v Paintman, 412 Mich 518; 315 NW2d 418 (1982), cert den 456 US 995; 102 S Ct 2280; 73 L Ed 2d 1292 (1982).
I
A
Defendant Bladel was convicted by a jury in July, 1979, of three counts of first-degree premeditated murder. He was sentenced to three concurrent mandatory life sentences. Testimony at trial revealed that three railroad employees were shot to death on December 31, 1978, at the Amtrak station in Jackson, Michigan. Defendant, a disgruntled former railroad employee, was the prime suspect. He was arrested on January 1, 1979, and questioned twice by Detective Gerald Rand on January 1 and 2. Defendant was properly advised of his Miranda rights before each questioning and agreed both times to talk without an attorney. Defendant admitted being in and around the station on December 30 and 31, 1978, but denied any involvement in the killings. He was released on January 3.
On March 18, 1979, the shotgun used in the killings was found. The weapon had been purchased by defendant two years before the killings. The police also obtained strong scientific evidence linking him to the killings. Defendant was arrested in Elkhart, Indiana, on March 22, 1979. He waived extradition after being advised by a magistrate of his right to a full hearing and representation by counsel.
Defendant was driven back to Jackson the same afternoon. Detective Rand questioned him again that evening. Prior to questioning, defendant was properly advised of his rights, agreed to talk without counsel, and signed a waiver form. He did not confess to the killings.
Defendant was arraigned on Friday, March 23, 1979, in the presence of Detective Rand. Defendant requested that counsel be appointed for him because he was indigent. A notice of appointment was mailed to a law firm that day, but was not received until Tuesday, March 27, 1979. Defendant was not informed during the interim that counsel had been appointed, although he inquired several times.
On March 26, 1979, two police officers interviewed defendant in the county jail. Although the officers were working with Detective Rand on this case, they were not told that defendant had requested counsel. Prior to questioning, the defendant was again properly advised of his Miranda rights. When he informed the officers that he had requested counsel, they inquired whether he wished to have an attorney present during questioning. Defendant agreed to proceed without counsel, signed a waiver form, and subsequently confessed to the killings.
Defendant challenged the admissibility of the confession and the three exculpatory statements at a pretrial Walker hearing. The trial court ruled that all of the statements were admissible because defendant was properly advised of his rights and had knowingly and understandingly waived them each time.
On appeal, defendant challenged only the admissibility of the confession. The Court of Appeals upheld the trial court’s decision and affirmed the convictions. People v Bladel, 106 Mich App 397; 308 NW2d 230 (1981). In lieu of granting leave to appeal, this Court remanded to the Court of Appeals for reconsideration in light of People v Paint-man and People v Conklin, 412 Mich 518; 315 NW2d 418 (1982). On remand, the Court of Appeals summarily concluded that Paintman and Conklin, when read in conjunction with this Court’s remand order, "compelled” reversal. 118 Mich App 498; 325 NW2d 421 (1982). We granted the prosecutor’s application for leave to appeal. 417 Mich 885; 330 NW2d 846 (1983).
B
Defendant Jackson was charged with first-degree murder, conspiracy to commit first-degree murder, and possession of a firearm during the commission of a felony in connection with the death of Rothbe Elwood Perry. He was convicted by a jury in February, 1980, of second-degree murder and conspiracy to commit second-degree murder. He was sentenced to two concurrent life terms.
Mr. Perry was shot and killed in his home in Livonia, Michigan, on July 12, 1979, during an apparent robbery. On July 28, 1979, Mildred Perry (the deceased’s wife) and Charles (Chare) Knight were arrested for the murder. Knight subsequently told Livonia police that Mildred Perry had solicited him to kill her husband. He, in turn, had contacted defendant. Knight maintained that defendant and another man had broken into the house and shot the deceased.
Defendant and Michael White were arrested on Monday, July 30, 1979, by Detroit police on an unrelated charge. They were turned over to the Livonia police at approximately 2 p.m. the following day. Defendant was questioned several times on July 31 and gave three similar statements. Defendant admitted breaking into the house to kill Mr. Perry, but maintained that Knight had fired the shots.
On August 1, at approximately 10 a.m., defendant submitted to a polygraph examination after being advised of his Miranda rights. When defendant was informed that he had not passed, he told the examiner that he was the shooter and White had accompanied him. Defendant gave substantially similar oral and written statements shortly thereafter to Sergeant William Hoff, one of the officers in charge of the case. _
Defendant, White, Perry, and Knight were arraigned at 4:30 p.m. that afternoon. During arraignment, defendant requested that counsel be appointed for him. Sergeants Hoff and Shirley Garrison were present when defendant requested counsel.
At 10:24 a.m. the next morning, defendant was readvised of his rights by Sergeants Garrison and Hoff and agreed to give another tape-recorded statement to "confirm” that he was the shooter. Defendant had not yet had an opportunity to consult with counsel. When asked whether he had been promised anything for his statement, defendant replied that nothing had been actually guaranteed, but something would be worked out.
Prior to trial, a lengthy Walker hearing was conducted. The trial court ruled that all of defendant’s statements were admissible because he had been advised of his Miranda rights before each statement was given, he never requested an attorney during the interrogations, he knowingly and voluntarily waived his rights each time, no improper promises or threats were made by the police, and the statements were not the result of any illegal delay in arraignment.
In affirming defendant’s conviction for second-degree murder, the Court of Appeals upheld the trial court’s findings of fact. As to the post-arraignment statement, the Court noted that the original panel in Bladel had found a knowledgeable and voluntary waiver of the right to counsel on almost identical facts. Edwards and Paintman were distinguished on the grounds that defendant asked for an attorney at arraignment, rather than during police interrogation. This request was "not made in such a way as to effectively exercise the right to preclude any subsequent interrogation” and was unrelated to defendant’s Fifth Amendment right to counsel. 114 Mich App 649, 658-659; 319 NW2d 613 (1982). We granted defendant’s application for leave to appeal. 417 Mich 885; 330 NW2d 846 (1983).
II
Defendants argue that their post-arraignment statements were obtained in violation of their Fifth and Sixth Amendment rights to counsel because they asked the arraigning magistrate for appointed counsel. To determine whether these statements are admissible, the following questions must first be resolved:
1) What constitutional right(s) to counsel attached at the post-arraignment interrogations?
2) What right(s) to counsel did defendants invoke when they requested counsel at arraignment?
3) What right(s) to counsel did defendants purportedly waive prior to their post-arraignment interrogations?
A
The right to counsel is guaranteed by both the Fifth and Sixth Amendments to the United States Constitution, as well as Const 1963, art 1, §§ 17 and 20. However, these constitutional rights are distinct and not necessarily coextensive. See Rhode Island v Innis, 446 US 291, 300, fn 4; 100 S Ct 1682; 64 L Ed 2d 297 (1980).
In Miranda, the United States Supreme Court declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation in order to protect the accused’s Fifth Amendment privilege against compulsory self-incrimination. Innis, supra, p 297; Edwards, supra, 451 US 481. However, the Fifth Amendment right to counsel attaches only when an accused is in custody, United States v Henry, 447 US 264, 273, fn 11; 100 S Ct 2183; 65 L Ed 2d 115 (1980), and subjected to interrogation. Innis, supra, p 298; Kirby v Illinois, 406 US 682, 688; 92 S Ct 1877; 32 L Ed 2d 411 (1972). Once an accused invokes his right to have counsel present during custodial interrogation, the police must refrain from further interrogation until counsel is made available, unless the accused initiates further communications, exchanges, or conversations with the police. Edwards, supra, pp 484-485; Paintman, supra, 412 Mich 526. Neither Miranda nor its progeny limits the Fifth Amendment right to counsel to custodial interrogations conducted prior to arraignment. Since defendants were clearly subjected to custodial interrogation when they made their post-arraignment confessions, their Fifth Amendment right to counsel had attached.
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” However, this right to counsel attaches only at or after the initiation of adversary judicial proceedings against the accused by way of a formal charge, preliminary hearing, indictment, information, or arraignment. United States v Gouveia, 467 US 180, 187-188; 104 S Ct 2292; 81 L Ed 2d 146 (1984); Kirby, supra, 406 US 688-689. The accused is entitled to counsel not only at trial, but at all "critical stages” of the prosecution, i.e., those stages "where counsel’s absence might derogate from the accused’s right to a fair trial.” United States v Wade, 388 US 218, 226-227; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). Regardless of whether the accused is in custody or subjected to formal interrogation, the Sixth Amendment right to counsel exists whenever the police attempt to elicit incriminating statements. Henry, supra, 447 US 271-273. See also Brewer v Williams, 430 US 387; 97 S Ct 1232; 51 L Ed 2d 424 (1977); Massiah v United States, 377 US 201; 84 S Ct 1199; 12 L Ed 2d 246 (1964). This right to counsel does not depend upon a request by the accused and courts indulge in every reasonable presumption against waiver. Brewer, supra, pp 404-405. Since defendants were interrogated subsequent to arraignment, they were also entitled to counsel under the Sixth Amendment.
B
The foregoing analysis demonstrates that defendants’ request to the arraigning magistrate for appointment of counsel implicated only their Sixth Amendment right to counsel. Although defendants were in custody at the time of their arraignments, they were not subjected to interrogation. In addition, they did not specifically request counsel for any subsequent custodial interrogations which might be conducted. Defendants requested appointed counsel because they were financially incapable of retaining an attorney and were unwilling to represent themselves. See State v Sparklin, 296 Or 85; 672 P2d 1182, 1185-1186 (1983).
C
The trial courts found that defendants never invoked their Fifth Amendment right to counsel before or during their post-arraignment interrogations. Furthermore, defendants knowingly and voluntarily waived their Miranda rights prior to their statements. Our independent review of the record does not disclose that these findings are clearly erroneous. People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974); People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972).
Ill
The question remains whether defendants’ waiver of their Fifth Amendment right to counsel also waived their Sixth Amendment right to counsel. Defendants were given standard Miranda warnings prior to their post-arraignment interrogations. However, these warnings were designed to advise an accused only of his Fifth Amendment rights. The Sixth Amendment right to counsel is considerably broader than its Fifth Amendment counterpart since it applies to all critical stages of the prosecution. Neither the United States Supreme Court nor this Court has delineated specific procedural requirements for waiver of the Sixth Amendment right to counsel.
A
Courts which have specifically addressed the problem of requests for counsel at arraignment have reached differing results both before and after Edwards was decided. The Second Circuit Court of Appeals has adopted the strictest procedural requirements for waiver of the Sixth Amendment right to counsel. In United States v Satterñeld, 558 F2d 655, 657 (CA 2, 1976), defendant’s post-indictment and post-arraignment statements were suppressed, even though he had executed a written waiver of his Miranda rights. The Court reasoned that even if the statements were voluntary for purposes of the Fifth Amendment "they were involuntary with 'regard . . . [to] the higher standard with respect to waiver of the right to counsel that applies when the Sixth Amendment has attached.’ ”
Specific procedural safeguards were adopted in United States v Mohabir, 624 F2d 1140 (CA 2, 1980). The Mohabir court explained that a higher standard for waiver of counsel is required after judicial proceedings have commenced because the government has committed itself to prosecute, and any questioning by the government can only be for the purpose of buttressing its prima facie case. Informing a defendant of his Miranda rights and the fact that he has been indicted is insufficient, since this information may not allow the accused to " 'appreciate the gravity of his legal position, and, the urgency of his need for a lawyer’s assistance.’ ” Id., pp 1148-1150. In the exercise of its supervisory power, the Mohabir court held that an accused may not validly waive his Sixth Amendment right to counsel unless a federal judicial officer has explained the content and significance of this right. Furthermore, the accused must be shown the indictment and informed of its significance, the right to counsel, and the seriousness of his situation should he decide to answer further police questions without counsel. The court believed that this procedure would minimize disputes as to what warnings were actually given and whether defendant fully comprehended his rights. Id., p 1153.
The Fifth Circuit, on the other hand, has reached conflicting results, primarily because it has not adequately distinguished the Fifth and Sixth Amendment rights to counsel. In Blasingame v Estelle, 604 F2d 893, 895-896 (CA 5, 1979), the court stated that the crucial inquiry is whether defendant’s assertion of his right to counsel before the arraigning magistrate was made in such a manner that the subsequent police questioning "impinged on the exercise of the suspect’s continuing option to cut off the interview.” It was noted that some defendants may wish to have an attorney represent them in legal proceedings, yet wish to assist the police by responding to questions without an attorney being present. The court found that Blasingame’s request was not an invocation of his Fifth Amendment right to confer with or have counsel present during questioning. Since he was informed of his Miranda rights at arraignment and before his subsequent interrogation, and had voluntarily and intelligently waived these rights, his post-arraignment statements were admissible. Blasingame, however, was decided solely on Fifth Amendment grounds.
A contrary result was reached in Silva v Estelle, 672 F2d 457 (CA 5, 1982). There, defendant was questioned one hour after he asked the arraigning magistrate for permission to call his attorney. This request was construed as an unequivocal exercise of defendant’s right to counsel. The Silva court concluded that under Edwards, the police were not entitled to initiate further interrogation unless they first honored defendant’s request for counsel. Like Blasingame, Silva did not distinguish between defendant’s Fifth and Sixth Amendment rights to counsel.
Shortly after Silva was decided, Jordan v Watkins, 681 F2d 1067, 1073-1075 (CA 5, 1982), held that the police, who were not aware that counsel had been appointed at arraignment, properly interrogated the defendant. Edwards was distinguished on the grounds that Jordan had never requested counsel with respect to custodial interrogation or attempted to cut off questioning; he merely wanted counsel to assist him in further judicial proceedings. (The Jordan court relied heavily upon Blasingame in reaching this conclusion, but did not mention Silva.) After examining the totality of the circumstances, the court found that Jordan had voluntarily, knowingly, and intelligently waived both his Fifth and Sixth Amendment rights to counsel._
In contrast, the Sixth Circuit held, in United States v Campbell, 721 F2d 578, 579 (CA 6, 1983), that incriminating statements obtained thirteen minutes after defendant requested and was appointed counsel were inadmissible. The court noted that the interrogating agents had manifested an indifference to, if not an intentional disregard for, defendant’s Sixth Amendment right to counsel and Fifth Amendment right against compulsory self-incrimination, primarily because they were present when defendant requested counsel. The agents improperly conducted "one last round of interrogation” before defendant had an opportunity to consult with counsel. Such conduct clearly violated Edwards. Jordan was distinguished because Campbell had not voluntarily, knowingly, and intelligently waived his Fifth Amendment right to counsel by initiating the post-arraignment conversation.
Several state supreme courts have addressed this problem, but have also reached conflicting results. In Johnson v Commonwealth, 220 Va 146, 158-159; 255 SE2d 525 (1979), later app 221 Va 736; 273 SE2d 784 (1981), cert den 454 US 920; 102 S Ct 422; 70 L Ed 2d 231 (1981), the police initiated interrogation five hours after defendant requested counsel at arraignment. The Virginia Supreme Court held that defendant’s confession was admissible because he had knowingly, intelligently, and voluntarily waived his right to counsel prior to interrogation. The court found that the police officers’ conduct was not coercive, they were not aware that defendant had been arraigned, and defendant had never requested counsel during the interrogation. However, the Johnson court did not distinguish between defendant’s Fifth and Sixth Amendment rights to counsel. Furthermore, the case was decided prior to Edwards.
The United States Supreme Court ultimately denied defendant’s petition for certiorari, over a lengthy dissent written by Justice Marshall. He believed that the decision to admit the confession was contrary to the spirit, if not the letter, of Edwards. He rejected the state’s attempt to distinguish Edwards:
"The State attempts to distinguish Edwards on two grounds. First, it points out that Edwards clearly expressed his desire to , deal with police only through counsel, whereas petitioner here simply asked that an attorney be appointed. However, an accused is under no obligation to state precisely why he wants a lawyer. If we were to distinguish cases based on the wording of an accused’s request, the value of the right to counsel would be substantially diminished. As we stated in Fare v Michael C., 442 US 707, 719 [99 S Ct 2560; 61 L Ed 2d 197] (1979), 'an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.’
"Second, the State notes that Edwards informed the police of his desire for an attorney, whereas petitioner only informed the judge at his arraignment. The State suggests that since the police did not know about petitioner’s request, the interrogation was not improper. However, the police could easily have determined whether petitioner had already exercised his right to counsel; presumably, a prosecutor was present at the arraignment. They did not know about petitioner’s request for a lawyer only because they made no effort to determine whether such a request had been made. But even if the police could not have discovered that petitioner had expressed a desire for an attorney, I would hold that the confession should not have been admitted. The key question in this case is whether petitioner’s waiver of his right to counsel was knowing, intelligent, and voluntary. In determining whether these conditions were satisfied, the fact that the police were unaware of a prior request for counsel is only tangentially relevant. What is important, rather, is the state of mind of the accused. I think it is no more safe to assume that a waiver is valid when an accused has made a prior request to the judge at his arraignment than when he has made the request to police. In both cases, the accused informs an individual in authority that he would like an attorney — and yet shortly thereafter, state officials, apparently disregarding his request, ask him to waive his rights.” 454 US 922-923.
In State v Sparklin, 296 Or 85; 672 P2d 1182 (1983), the Oregon Supreme Court carefully differentiated between the two constitutional rights to counsel. There, defendant requested an attorney at his arraignment on a forgery charge stemming from the use of a stolen credit card. That evening, the police interrogated him concerning an assault on the credit card owner and a factually unrelated murder and robbery. Defendant waived his Miranda rights and confessed to the murder.
The Sparklin court initially found that defendant had not invoked either his state or Fifth Amendment right to counsel or privilege against compulsory self-incrimination during arraignment. Unlike an interrogation session, a defendant is not confronted with an atmosphere of coercion or attempts to gain admissions during arraignment. Without a more explicit request or one made in anticipation of, or during, interrogation, defendant’s request for an attorney was deemed to be merely "a matter of routine.” 672 P2d 1185-1186.
Turning to the Sixth Amendment right to counsel and its state counterpart, the Sparklin court noted that pursuant to its earlier interpretations of the Oregon Constitution, the state was required to notify the defendant’s attorney prior to interrogation and afford him an opportunity to be present. Furthermore, the defendant could not waive his state constitutional right to counsel until he had consulted with his attorney, although he could volunteer statements on his own initiative. 672 P2d 1187. Although the comparable Sixth Amendment right to counsel was not so clearly defined, the court believed that it was of equal scope. 672 P2d 1188. In dicta, the court noted that if defendant had been questioned for the crimes against the credit card owner, the interrogation would have been improper since no waiver could have been given before counsel was consulted. 672 P2d 1190.
The most recent decision is State v Wyer, 320 SE2d 92 (W Va, 1984). After reviewing numerous cases, the West Virginia Supreme Court concluded that there is no rule per se against waiver of the Sixth Amendment right to counsel. However, it believed that such a waiver should be judged by stricter standards than a waiver of the Fifth Amendment right to counsel. The Wyer court refused to equate a general request for counsel at arraignment with an Edwards direct request for counsel to an interrogating officer, since the Sixth Amendment right attaches regardless of whether a specific request is made. Thus, the police could initiate questioning after a defendant requests counsel at arraignment, as long as the defendant is willing to waive his Sixth Amendment right.
In order to ensure a valid waiver of the Sixth Amendment right to counsel, the Wyer court held that a defendant must execute a written waiver after being informed of his arrest, the nature of the charges against him, and his Miranda rights. If the defendant asserts his Edwards right to counsel when the waiver is sought, interrogation must cease until counsel is made available, unless the defendant initiates further communications with the intent to waive his Sixth Amendment right to counsel. The interrogating officer’s knowledge that counsel has been requested was deemed to be only "one ingredient” in determining whether the waiver was valid, rather than an absolute bar. Id., p 105 and fns 23 & 25.
The Wyer dissent persuasively argued that if a Miranda waiver is inadequate to protect the Fifth Amendment right to counsel under Edwards, it certainly would be inadequate to protect the greater Sixth Amendment right. The dissent believed that once a defendant makes an oral or written request for counsel to the magistrate, the police must notify his lawyer and refrain from further interrogation until the defendant has spoken to him. If, after consultation, the defendant wishes to forego his right to counsel, he can then do so. The officer’s presence at arraignment was deemed an irrelevant consideration, since both he and the prosecutor have a duty to discover whether the defendant has been arraigned and if he requested counsel. Such safeguards would not prevent confessions, but only guarantee that they were voluntary and obtained without violating the defendant’s right to counsel. The dissent concluded:
"[I]t is time to recognize that all defendants without counsel are constitutionally disadvantaged when faced with a government armory of armed police, prosecutors and professional interrogators.” Id., p 111.
B
As the foregoing discussion demonstrates, no consistent approach to the waiver problem has emerged. However, it is clear that no court has adopted a per se rule which prevents a defendant from ever waiving his Sixth Amendment right to counsel. We also decline to adopt such a rule.
It is also clear that if defendants had invoked their Fifth Amendment right to counsel to the police, Edwards and Paintman would have barred all further interrogation until defendants had an opportunity to consult with counsel, since they did not reinitiate further conversations with the police. The United States Supreme Court adopted this prophylactic rule to protect an accused from being badgered by the police while in custody. Oregon v Bradshaw, 462 US 1039, 1044; 103 S Ct 2830; 77 L Ed 2d 405 (1983).
Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation of a defendant who makes an identical request to a judge. The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversar ies singlehandedly. As Justice Marshall noted, if we are to distinguish cases solely on the wording of an accused’s request and to whom it is made, the value of the right to counsel would be substantially diminished.
Furthermore, once adversary judicial proceedings have commenced, the police have "everything to gain” and the accused "everything to lose” when "one last round” of interrogation is conducted before counsel arrives:
"As Justice Stewart noted in Kirby v Illinois, supra, 406 US at 689-690:
" 'The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the "criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.’ . . .
"The indictment thus marks a crucial point for the defendant; it also marks the point after which any questioning of the defendant by the government can only be 'for the purpose of buttressing ... a prima facie case. . . . [S]ince the finding of the indictment presumably imports that the People have legally sufficient evidence of the defendant’s guilt of the crime charged . . . , the necessities of appropriate police investigation "to solve a crime, or even to absolve a suspect” cannot be urged as justification for any subsequent questioning of the defendant.’
"[A]s Judge Knapp pointed out in United States v Satterfield, 417 F Supp 293, 296 (SD NY), affid, 558 F2d 655 (CA 2, 1976):
" 'Prior to indictment — before the prosecution has taken shape — there may be reasons why a suspect might rationally wish to deal with agents without the intervention of counsel. By getting in their good graces and being useful to the government he might be able altogether to avoid indictment or any legal entanglement. No such opportunity is open to him after a grand jury has spoken. At that point he cannot make any arrangement with agents or prosecutor that is not subject to ultimate approval by the court, and counsel is obviously important to advise him on what terms such approval is likely to be forthcoming and how best to obtain it.’ ” Mohabir, supra, 624 F2d 1148-1149.
Finally, it is clear that every court has acknowledged that the Sixth Amendment right to counsel is as important, if not more so, than the judicially created Fifth Amendment right to counsel. As such, it is entitled to be protected by procedural safeguards at least as stringent as those designed for its lesser counterpart. We decline to follow the reasoning of those cases which have found valid Sixth Amendment waivers after a request for counsel has been made to a magistrate based solely on waivers of Miranda rights. The majority of these cases did not sufficiently distinguish between the concerns underlying the Fifth and Sixth Amendment rights to counsel. As the Wyer dissent noted, if a Miranda waiver is insufficient to ensure a valid waiver of the Fifth Amendment right to counsel pursuant to Edwards, it certainly should be inadequate to ensure a valid waiver of the greater Sixth Amendment right.
C
We need not decide at this time whether stricter procedural standards for waiver of the Sixth Amendment right to counsel are required. We need only hold that, at a minimum, the Edwards/ Paintman rule applies by analogy to those situations where an accused requests counsel before the arraigning magistrate. Once this request occurs, the police may not conduct further interrogations until counsel has been made available to the accused, unless the accused initiates further communications, exchanges, or conversations with the police. If a defendant chooses to reinitiate communications, he must be sufficiently aware of both his Fifth and Sixth Amendment rights to effectuate a voluntary, knowing, and intelligent waiver of each right. See Bradshaw, supra, p 1046; Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938).
We further hold that before commencing interrogation, the police have an obligation to determine whether an accused has been arraigned and requested counsel. This duty is no more onerous than that imposed by Edwards and Paintman. As Justice Williams observed in his dissent in People v Esters, 417 Mich 34, 64; 331 NW2d 211 (1982):
"[T]he defendant’s rights may not be diminished merely because the state fails to respond to defendant’s request for counsel, as it should have done. Once he has asked for counsel, the defendant has done all that is within his power to secure this guaranteed right.”_
We also note that the police officers who were in charge of the investigations in both Bladel and Jackson were present at the arraignments when defendants requested appointed counsel. Although the officers who later interrogated Bladel were not present at arraignment, Bladel informed them of his request prior to questioning. In both cases, the police were attempting to strengthen their cases by conducting "one last round” of interrogation before counsel arrived. Interrogations of defendants who are represented by counsel without counsel’s knowledge have been repeatedly criticized. See, e.g., United States v Campbell, 721 F2d 578, 579 (CA 6, 1983); United States v Cobbs, 481 F2d 196, 200 (CA 3, 1973), cert den 414 US 980; 94 S Ct 298; 38 L Ed 2d 224 (1973); United States v Springer, 460 F2d 1344, 1353 (CA 7, 1972), cert den 409 US 873; 93 S Ct 205; 34 L Ed 2d 125 (1972); Paintman, supra, 412 Mich 529-530.
The police cannot simply ignore a defendant’s unequivocal request for counsel. As this Court noted in Paintman, supra:
"Of what significance is invocation of a cherished constitutional right if it is ignored by the hearer and, in fact, only seems to exacerbate the defendant’s plight? As the time gap increases between the embracing of the right and its fulfillment, the certainty of its existence must surely dim.”
In fact, defendant Bladel specifically testified that he began to doubt whether he would have counsel appointed because he did not meet with an attorney until three days after his arraignment. Furthermore, when he asked the jail personnel and the interrogating officers whether counsel had been appointed for him, they repeatedly pleaded ignorance.
Since defendants Bladel and Jackson requested counsel during their arraignments, but were not afforded an opportunity to consult with counsel before the police initiated further interrogations, their post-arraignment confessions were improperly obtained and must be suppressed. Plaintiffs nevertheless maintain that defendants’ statements need not be suppressed because they were tried before Edwards was decided. In Solem v Stumes, 465 US 638, 650; 104 S Ct 1338; 79 L Ed 2d 579 (1984), the Supreme Court refused to apply Edwards retroactively to collateral reviews of final convictions. The Court, however, specifically declined to decide whether Edwards could be applied retroactively to defendants whose convictions were not yet final when the decision was issued.
We need not decide this question since a violation of the Fifth Amendment right to counsel is not involved in either of these cases. We have merely extended the Edwards/Paintman rule by analogy to cases involving requests for counsel during arraignment, on the basis of our interpretation of both the Sixth Amendment right to counsel and its state constitutional counterpart embodied in Const 1963, art 1, § 20. Given the Supreme Court’s holding that Edwards established a new "bright line” test, the fact that this Court has not previously articulated precise procedural standards for waivers of the Sixth Amendment right to counsel, and the diverse approaches adopted in other jurisdictions, the rules articulated herein will apply to the instant cases, those cases tried after this opinion is issued, and those cases pending on appeal which have raised the issue.
IV
Defendant Jackson further argues that his six prearraignment confessions were inadmissible because the police deliberately delayed arraignment in order to obtain them or the confessions were induced by police threats and promises. The trial court rejected both arguments. The Court of Appeals agreed that the prearraignment delay was not used to extract a confession. Defendant was properly advised of his Miranda rights before each session and, according to the police officers, he volunteered his statements. 114 Mich App 654-655.
A
Although the police had sufficient probable cause to obtain a warrant for defendant Jackson’s arrest as a result of codefendant Knight’s statements, they did not do so. Defendant was "arrested” on the murder charges on Tuesday, July 31, at 2 p.m. when he was turned over to the Livonia police. Since defendant was arrested for a felony without a warrant, the arresting officers were required to bring him before a magistrate for arraignment without unnecessary delay. MCL 764.13; MSA 28.871(1), MCL 764.26; MSA 28.885; People v Mallory, 421 Mich 229, 238-239; 365 NW2d 673 (1984); People v White, 392 Mich 404, 424; 221 NW2d 357 (1974), cert den sub nom Michigan v White, 420 US 912; 95 S Ct 835; 42 L Ed 2d 843 (1975). Immediate arraignment is not required, however. Circumstances may require a brief delay for "booking,” a quick verification of the accused’s volunteered "story,” or a brief questioning to determine the immediate question of release or complaint. Mallory v United States, 354 US 449, 454-455; 77 S Ct 1356; 1 L Ed 2d 1479 (1957); People v Hamilton, 359 Mich 410, 416-417; 102 NW2d 738 (1960). Even where an unnecessary delay has occurred, admissions or confessions obtained during this period will not be excluded unless the delay was employed as a tool to extract the statement. Mallory, supra, 421 Mich 240; White, supra.
Defendant was not arraigned until August 1 at 4:30 p.m., approximately 26-1/2 hours after his arrest. He was first interrogated shortly after arriving at the Livonia police station. The police initially obtained background information from defendant and informed him of his rights, the nature of the charges against him, and the mandatory punishment of life imprisonment for first-degree murder. They then confronted him with Knight’s statement that defendant and another person had committed the murder. At approximately 3:30 p.m., defendant admitted that he was present during the murder, but maintained that Knight was with him and had shot the victim.
We conclude that this first oral statement was not obtained during a period of unreasonable delay. The officers’ questioning occurred 1-1/2 hours after the arrest and was for the purpose of determining whether Knight had unjustly accused defendant.
Sergeant Richard Ericson, another officer in charge of the case, testified at the Walker hearing that after this first confession, the police had sufficient information to obtain an arrest warrant against defendant. Sergeant Hoff testified similarly, but explained that they could not have obtained a warrant because the prosecutor’s office was closed and there was no one available to authorize the warrant request. Shortly after the first statement was given, the police asked defendant to repeat his statement so that it could be tape-recorded. Defendant agreed. The recording began at 5:52 p.m. However, the quality of the recording was so poor that the police asked defendant to repeat the statement again. The second taping began at 8:48 p.m. The content of these two recorded statements did not substantially differ from that of the prior oral statement.
Giving the police the benefit of the doubt, we conclude that no unreasonable delay occurred between the arrest and the time these two taped statements were given. If any unreasonable delay occurred, it was not used to extract a new statement, but merely to memorialize the first oral statement.
After the second taped statement, defendant was confronted by the fact that his version still differed from Knight’s, i.e., defendant claimed that he and Knight were present but that Knight was the shooter, while Knight claimed that defendant and White committed the murder. The police noted that Knight had agreed to undergo a polygraph examination the following morning and requested that defendant undergo one also. Defendant agreed.
The examination began at approximately 10 a.m. The polygraph examiner informed defendant of his rights and that he did not have to submit to the exam. Defendant still agreed to the polygraph. Afterwards, the examiner informed defendant that he had not been truthful and urged him to tell the other officers the truth in order to maintain his credibility. Defendant then confessed to the examiner that he had shot the victim and that White, not Knight, had been present. The examiner immediately informed Sergeant Hoff, who was waiting outside the polygraph room. Shortly thereafter, Sergeant Hoff met with defendant, advised him of his rights, and obtained substantially similar oral and written statements.
Primarily on the basis of the officers’ testimony at the Walker hearing, we conclude that the three post-polygraph statements were obtained during an unnecessary prearraignment delay and that the delay was employed as a tool to extract these statements. Sergeant Hoff testified that if an arrest warrant had been issued during the morning of August 1, defendant could have been arraigned at that time, except for the polygraph exam. Sergeant Ericson testified that he began preparing the 36-page warrant request for all four defendants at 9:30 a.m. on August 1, and finished at 1 p.m. On cross-examination, however, he stated that he had previously prepared a request and obtained a warrant for codefendant Perry. The warrant requests for Perry and defendant were substantially similar, except for the information concerning Knight’s statements, and defendant’s pre- and post-polygraph confessions. Sergeant Ericson thereafter presented the request to the prosecutor’s office, obtained the complaints and warrants, and arrived at the Livonia District Court at approximately 4:30 p.m. for the arraignment.
Although the thoroughness with which the warrant request was prepared may be commendable, the police cannot justify infringing upon a defendant’s statutory and constitutional rights to a prompt arraignment merely on the grounds that their "paperwork” has not yet been completed. A contrary conclusion would encourage dilatory efforts in seeking and obtaining the prosecutor’s authorization. It must be remembered that a magistrate is required to issue an arrest warrant upon presentation of a proper complaint alleging the commission of an offense and upon a finding of reasonable cause to believe that the accused committed the offense. MCL 764.1a; MSA 28.860(1). The complaint need not contain every fact which contributed to the affiant’s conclusions, nor must every factual allegation be independently documented. The complaint simply has to be sufficient enough to enable the magistrate to determine that the charges are not capricious and are sufficiently supported to justify further criminal action. Jaben v United States, 381 US 214, 224-225; 85 S Ct 1365; 14 L Ed 2d 345 (1965); United States v Fachini, 466 F2d 53, 56 (CA 6, 1972). In addition, a complaint may thereafter be amended if additional evidence so requires. The police and the prosecutor here had sufficient evidence to draft a complaint and obtain a warrant before or shortly after defendant was arrested. There was no need, for purposes of arraignment, to determine whether Knight or defendant was telling the truth.
The delay was used as a tool to extract the three post-polygraph statements. Sergeants Ericson, Hoff, and Garrison all testified that they asked defendant to submit to a polygraph so that they could determine whether he was telling the truth. Although they did not specifically instruct the examiner to obtain a statement, Sergeant Hoff testified that they had hoped to obtain another statement if defendant’s original confession proved inaccurate. The police were obviously attempting to strengthen their case against all four defendants, particularly White, who had not yet confessed to any involvement. The three post-polygraph confessions therefore were not admissible.
B
After reviewing the record, we conclude that the trial court did not clearly err in finding that defendant’s three pre-polygraph confessions were not improperly induced by threats or promises. In light of our prior conclusion that the post-polygraph confessions are inadmissible, we need not determine whether they were the product of threats or promises. Although defendant’s three pre-polygraph confessions implicated him in the murder at least as an aider and abettor, a new trial is required. Defendant testified before the jury that he did not make the first oral statement and that the two taped confessions were induced by police threats and promises. The cumulative effect of admitting seven confessions, as opposed to three, may have made a difference in the jury’s determination of credibility.
V
The decision of the Court of Appeals is affirmed in Bladel and reversed in Jackson. These cases are remanded to the trial courts for further proceedings consistent with this opinion.
Williams, C.J., and Kavanagh and Levin, JJ., concurred with Cavanagh, J.
MCL 750.316; MSA 28.548.
The evidence against defendant was substantial. Shortly before he died, one of the victims indicated that the assailant was a white male. A ticket clerk observed a tall, husky person walking away from the station after the shootings, carrying a soft-sided suitcase. A passerby similarly testified that he observed a stocky man wearing a jacket and cap walking away from the station carrying a case. He entered a nearby hotel. Defendant had rented a room at that hotel on December 30 and 31, 1978.
When defendant was arrested on January 1, 1979, he was wearing a blue nylon jacket and cap and was carrying a brown soft-sided suitcase, which contained a can of gun oil. Defendant first claimed that he had been nowhere near the station, but later stated that he had used the restrooms there twice. He claimed to have recently arrived in Jackson to look for a job, even though it was a holiday weekend.
A 12-gauge shotgun and duck jacket were found in mid-March 1979. Ballistics evidence disclosed that a spent shotgun shell found at the scene of the killings came from the shotgun. The weapon had been purchased by defendant in Elkhart, Indiana, two years before the killings. Fibers found on the gun and the duck jacket and in defendant’s suitcase were identical. A speck of human blood was also found on the cap defendant was wearing when he was first arrested.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
The court acknowledged that the lack of opportunity to consult with counsel before interrogation does affect the voluntariness and effectiveness of a waiver. However, it knew of no case which required suppression under these circumstances.
The Court of Appeals rejected defendant’s assertion that interrogation can never occur once a defendant requests counsel. The court acknowledged that the prosecutor bore a heavy burden in proving a knowledgeable and voluntary waiver and that the police may have acted unethically in obtaining the confession. Nevertheless, the waiver was valid because defendant had been warned by the Indiana magistrate not to talk to police until he met with counsel, he had prior contact with the criminal justice system and understood his rights, he had signed a waiver form, and had not reasserted his right to counsel during the interrogation. Finally, the four-day delay between arraignment and the first meeting with counsel was not unreasonable. There was no evidence that defendant was kept from his attorney in order to obtain a confession.
MCL 750.157a; MSA 28.354(1) and MCL 750.316; MSA 28.548.
MCL 750.227b; MSA 28.424(2).
MCL 750.317; MSA 28.549.
Defendant’s first oral statement was given at 3:30 p.m. A similar statement was tape recorded at 5:52 p.m., but was retaped at 8:48 p.m. because of the poor quality of the prior recording. Defendant maintained that he was not advised of his Miranda rights until shortly before the first taping and that he had requested an attorney during the first interrogation. He agreed to confess because the police suggested that he might be able to plead to less than first-degree murder. He was also afraid that he would be beaten.
In contrast, several police officers testified that defendant was advised of his rights as he was being transported from Detroit to Livonia and before each statement was given. They denied that defendant had ever requested an attorney. They also denied promising him a "deal” or threatening him. The trial court found the police officers’ testimony to be more credible.
Subsequent to these statements, the police reinterrogated Michael White, who had repeatedly denied any involvement. Defendant was brought into the interrogation room to persuade White to confess. This interrogation session was tape recorded. White subsequently confessed to the murder after arraignment.
However, White’s confession was suppressed as being coerced. Primarily on the basis of the recorded interrogation session of August 1, the trial court found that the police had ignored White’s requests for counsel and improperly offered plea bargains.
The Court of Appeals vacated defendant’s conviction and sentence for conspiracy to commit second-degree murder because the crime could not logically exist. The Court reasoned that defendant could not have conspired to commit a criminal act which by definition is committed without premeditation and deliberation. The prosecutor has not challenged this ruling on appeal to this Court.
Const 1963, art 1, § 17 provides in relevant part:
"No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.”
Const 1963, art 1, § 20 provides in relevant part:
"In every criminal prosecution, the accused shall have the right ... to have the assistance of counsel for his defense . . . .”
Although Edwards arguably involved a statement obtained after judicial criminal proceedings had commenced, the Supreme Court specifically declined to address the Sixth Amendment question because the state court had not done so. Edwards, supra, 451 US 480, fn 7. Similarly, in Conklin (the companion case to Paintman), a confession was obtained seven days after the defendant requested counsel during his arraignment. See Paintman, supra, 412 Mich 526. This Court did not discuss the Sixth Amendment ramifications of this request since Paintman and Conklin had also invoked their Fifth Amendment right to counsel prior to arraignment.
Numerous courts have attempted to define what procedural requirements are sufficient to ensure that a defendant’s waiver of his Sixth Amendment right to counsel is voluntary, knowing and intelligent. See cases cited in People v Green (Levin, J., dissenting), 405 Mich 273, 302-304, and fns 5-8; 274 NW2d 448 (1979), and Note, Proposed requirements for waiver of the Sixth Amendment right to counsel, 82 Colum L R 363, 369, fn 42 (1982). Some courts have held that a valid waiver of Miranda rights alone is sufficient, while other courts require that the defendant be specifically informed of his Sixth Amendment rights by the police or a neutral magistrate. Some cases apparently have turned on the particular facts presented, e.g., whether the defendant or the police initiated the conversation which resulted in the confession, or whether the police were aware that defendant had been arraigned, had requested counsel, or had obtained counsel by the time the interrogation was conducted. Id.
Recent law review articles generally advocate that higher standards be implemented to safeguard the Sixth Amendment right to counsel. See, e.g., 82 Colum L R, supra, p 381 (defense counsel should be present when defendant waives his right to counsel); Note, Sixth Amendment right to counsel: Standards for knowing and intelligent pretrial waivers, 60 Boston U L R 738, 762-764 (1980) (in addition to Miranda warnings, defendant must be told that he has been formally charged, the significance thereof, and how an attorney could assist him); Grano, Rhode Island v Innis: A need to reconsider the constitutional premises underlying the law of confessions, 17 Am Crim L R 1, 35 (1979) (police cannot elicit information from defendant unless they seek to notify counsel; if no attorney exists, defendant’s waiver must meet the standards that govern waiver of the right to counsel at trial pursuant to Faretta v California, 422 US 806; 95 S Ct 2525; 45 L Ed 2d 562 [1975]); cf. Constitutional law — Right to counsel, 49 Geo Washington L R 399, 409-410 (1981) (Miranda warnings sufficient unless defendant indicted before arrest). United States Supreme Court Justice Thurgood Marshall has also consistently advocated a higher standard for waiver of the Sixth Amendment right to counsel. See Wyrick v Fields (Marshall, J., dissenting), 459 US 42, 54-55; 103 S Ct 394; 74 L Ed 2d 214 (1982), cert den añer remand 464 US 1020; 104 S Ct 556; 78 L Ed 2d 728 (1983).
Mohabir involved an indirect request for counsel to the arraigning magistrate. Before interrogation, defendant was advised several times of his Miranda rights, the nature of the charges against him, and the fact that he had been indicted. He was also given a copy of the indictment, but was not informed of the significance thereof. During interrogation, defendant was asked if he would need counsel appointed for arraignment. He replied affirmatively, but questioning continued. The arraigning magistrate was informed of defendant’s request and contacted an attorney to represent defendant.
The Mohabir court refused to allow the prosecutor to give this advice since he is an adversary of the defendant. It postponed consideration of a third alternative, i.e., "outlawing” all statements made by an indicted defendant following an uncounseled waiver. The court noted that such an approach could conflict with the defendant’s constitutional right to represent himself under Faretta v California, supra. Mohabir, supra, 624 F2d 1151-1153.
The Court of Appeals relied primarily on Blasingame in concluding that Bladel and Jackson’s post-arraignment statements were admissible.
However, since the interrogation related to a criminal episode unrelated to the one on which defendant was arraigned and for which counsel was obtained, the Sparklin court concluded that the confession was properly obtained. 6Y2 P2d 1188.
Although the United States Supreme Court sidestepped this issue in Brewer, supra, 430 US 405-406, it suggested that a Sixth Amendment waiver is not precluded in Estelle v Smith, 451 US 454, 471, fn 16; 101 S Ct 1866; 68 L Ed 2d 359 (1981). Moreover, the Supreme Court has stated that the Sixth Amendment right to counsel may be waived at a post-indictment lineup. Wade, supra, 388 US 237. In addition, a defendant has a constitutional right to waive the assistance of counsel at trial, as long as the trial court advises the defendant of the dangers and disadvantages of self-representation and the defendant knowingly and voluntarily waives his right to counsel. Faretta, supra, 422 US 835; People v Anderson, 398 Mich 361, 368; 247 NW2d 857 (1976).
See also 82 Colum L R, supra, pp 372-373.
We do not decide under what circumstances the police may interrogate a defendant who has not specifically requested appointed counsel at arraignment, or who has already consulted with counsel. We note only that these defendants must waive both their Fifth and Sixth Amendment rights to counsel before post-arraignment interrogation may proceed.
This rule is consistent with the result reached in People v Green, 405 Mich 273; 274 NW2d 448 (1979), since defendant there reinitiated further communications with the police. However, we do not suggest that the warnings given in Green are sufficient to effectuate a valid waiver of the Sixth Amendment right to counsel. That issue was not presented in Green and we need not decide it here.
Solem, supra, p 646; cf. Paintman, supra, 412 Mich 530-531.
On appeal to this Court, defendant does not challenge the trial court’s findings that he was properly advised of his rights before each statement was given and that he never requested an attorney until arraignment. Our independent review of the record does not disclose that these findings are clearly erroneous.
Since the trial court found the police officers to be more credible, the following discussion of the facts is based upon the officers’ testimony at the Walker hearing.
However, our conclusion in no way condones the officers’ actions. Defendant’s first confession, when coupled with Knight’s statement, presented more than enough evidence to arraign defendant for conspiracy and first-degree murder. The only purpose in recording defendant’s statement was to strengthen the prosecution’s case against him and his codefendants prior to arraignment. The result in this case might have been different if the first oral statement had been obtained earlier in the day, if it had materially differed from the subsequently recorded statements, or if the recorded statements were the product of more intensive interrogation.
Plaintiff suggests that even if an unnecessary prearraignment delay occurred, the ultimate test for purposes of the exclusionary rule is whether the statement obtained was voluntary or coerced. See, e.g., People v Wallach, 110 Mich App 37, 59, fn 5; 312 NW2d 387 (1981), vacated and remanded on other grounds 417 Mich 937; 331 NW2d 730 (1983); People v Antonio Johnson, 85 Mich App 247, 252-253; 271 NW2d 177 (1978). Although earlier decisions of this Court could be interpreted in this manner, see, e.g., People v Farmer, 380 Mich 198; 156 NW2d 504 (1968); People v Ubbes, 374 Mich 571; 132 NW2d 669 (1965); People v Harper, 365 Mich 494; 113 NW2d 808 (1962); Hamilton, supra, an examination of White, supra, 392 Mich 424-425, reveals that this Court now treats the question of prearraignment delay apart from the issue of voluntariness. If voluntariness were the only relevant inquiry, there would be no reason to analyze whether a prearraignment delay occurred and was used as a tool, since involuntary statements have always been held inadmissible regardless of when they are obtained. Prompt arraignment serves several important functions apart from preventing improper custodial interrogations. See Mallory, supra, 421 Mich 239.
A review of the police officers’ testimony reveals that if any threats or promises were made to defendant, they occurred after the second taped statement. Sergeant Ericson testified that he told defendant after the second taped statement that the police were primarily after Ms. Perry. Leniency was not mentioned until after the post-arraignment statement. Sergeant Garrison stated that defendant may have mentioned not wanting to go to jail on July 31, but he was informed that the police could not authorize pleas to less serious offenses. Sergeant Hoff testified that no one discussed pleas on July 31. He did mention the possibility of a plea to second-degree murder if defendant cooperated and if the prosecutor agreed. However, this discussion occurred after the polygraph examination. | [
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In this matter the recommendation of the Judicial Tenure Commission and the respondent’s consent to entry of an order of discipline are considered and it is hereby ordered that the Honorable Virginia A. Sobotka is hereby publicly censured and that she be suspended from her judicial duties, with pay, for a period of two months after the date of certification of this order. It is further ordered that as a condition of her reinstatement Judge Sobotka shall forfeit a sum equal to two months of her judicial salary. It is further ordered that for a period of six months after her reinstatement Judge Sobotka’s performance shall be supervised under terms and conditions to be established by the Judicial Tenure Commission. | [
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Williams, C.J.
I. Introduction
We granted leave to appeal in these five cases limited to the issue whether a defendant’s inculpatory statement is inadmissible per se if induced by a law enforcement official’s promise of leniency. 417 Mich 1036,1037,1038, 1040 (1983). In People v Jones, 416 Mich 354; 331 NW2d 406 (1982), cert den 460 US 1084; 103 S Ct 1775; 76 L Ed 2d 347 (1983), this Court was confronted with substantially the same issue. This Court, however, divided equally over the proper resolution of that issue. We now seek to resolve this split and the existing controversy between the per se test and totality of circumstances test.
We would adopt parts of both tests in favor of a test that we find to be more consonant with the law and logic. We would hold that under Const 1963, art 1, § 17, a statement induced by a law enforcement officiars promise of leniency is involuntary and inadmissible, if there was a promise of leniency and that promise caused the defendant to confess. In determining whether a promise of leniency exists, the relevant inquiry is whether the defendant reasonably understood the official’s statements to be a promise of leniency. In determining whether that promise caused the defendant to confess, we will ask whether the promise was one relied upon by the defendant in making his decision to offer inculpatory statements, and whether it was one that prompted him in fact to give those statements. If the answer to all of the foregoing inquiries is affirmative, the defendant’s statements are involuntary and inadmissible. If the answer to any of the questions is negative, the defendant’s statements are admissible.
II. Facts
People v Conte
Augustino Conte, originally charged with conspiracy to murder, MCL 750.157a; MSA 28.354(1), first-degree murder, MCL 750.316; MSA 28.548, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), went to trial only on the first-degree murder charge. This charge arose from the killing of a woman who was a major prosecution witness in another case against David Ovegian, one of defendant’s accomplices in this case. A jury found the defendant guilty as charged, and Mr. Conte was sentenced to life imprisonment. The Court of Appeals affirmed, and we granted leave to appeal.
On September 18, 1977, the defendant and Gary Wolfe were arrested in connection with the robbery of the Arts and Gems jewelry store and the murder of its owner and assistant manager. Defendant’s live-in girlfriend, Kathleen Stevenson, was arrested on the following day in connection with the same crime. The defendant later saw Ms. Stevenson in the booking area of the police station. She was emotionally upset, and defendant learned that she had been arrested for her alleged involvement in the Arts and Gems jewelry store murder and robbery. Defendant again encountered Ms. Stevenson on his way to an interrogation room. She was seated next to a detective’s desk crying. Ms. Stevenson was then placed in an adjacent interrogation room where defendant claimed he could hear her.
While the evidence is contradictory, it seems that at some point the defendant offered to cooperate in the solving of four other cases if the authorities would release Ms. Stevenson and not charge her with any crime. The ultimate agreement reached was that defendant would solve four other crimes and the prosecutor would release Kathleen Stevenson and not charge her in connection with any of those four cases or the Arts and Gems crime, provided that she was not present at the scene of any of those crimes and did not pull the trigger in any homicide. This agreement was conditioned on the defendant’s and Ms. Stevenson’s taking of polygraph tests to confirm the absence of Ms. Stevenson’s involvement as above noted. Defendant confessed in accordance with the agreement to the crime for which he is charged in this case.
Following a Walker hearing, the district court denied defendant’s motion to suppress the confession. The motion was renewed in the circuit court and granted. On interlocutory appeal, the Court of Appeals reversed and remanded. The case went to trial and proceeded as noted above.
People v Meaker
Timothy L. Meaker was charged with one count of first-degree murder, MCL 750.316; MSA 28.548, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). A jury found the defendant guilty as charged and he was sentenced to two years imprisonment on the felony-firearm conviction and life imprisonment on the first-degree murder conviction. The Court of Appeals reversed and denied rehearing. We held the prosecutor’s application for leave to appeal in abeyance pending decision in People v Jones, supra, and subsequently granted leave to appeal.
The defendant’s conviction arose out of the May 12, 1978, shooting death of Dennis Rudy, whose body was discovered on a gravel road in Browns-town Township, Wayne County. The victim had been shot seven times. The police learned that the defendant had been together with the victim on the night of the shooting and, hence, focused their investigation on him. On May 13, 1978, the defendant voluntarily appeared at a state police post and gave a statement. He admitted being with the victim on the night of his death, but said that he left the deceased alive in the company of two unnamed males. On May 25, 1978, while still not in custody, defendant again voluntarily came to a state police post and gave another statement which was slightly different from the first statement. Later, defendant admitted that he was present when the deceased was shot, but stated that someone else shot him. Defendant indicated, however, that he set Mr. Rudy up for $2,000.
Defendant agreed to take a polygraph examination on June 8, 1978. Prior to the taking of that test, the examiner took a statement from the defendant to prepare for the test. Although it differed in some particulars, the defendant related a story to the examiner similar to the second one given on May 25.
Defendant was ultimately charged, and a preliminary examination was scheduled for June 19, 1978. On that date, the police, the prosecuting attorney, and the defendant through his attorney entered into an agreement whereby defendant would be given a reduced bond, but would be required to take an additional polygraph test and stay away from the victim’s family.
The defendant met with an officer on June 26, 1978, for the purpose of conducting a "warm up” interview. At this time, the defendant gave yet another version of the events that transpired on the eve of May 12, 1978. The defendant confessed that he had shot the deceased following an argument and scuffle. Defendant indicated that he acted in self-defense. Finally, on June 28, 1978, the defendant appeared for the polygraph examination. A preliminary interview was conducted, during which defendant gave a story similar to that given on June 26, except that defendant stated that the deceased pulled a shotgun on him. The defendant subsequently refused to take the polygraph.
The defendant’s pretrial motion to suppress the statements was denied by the trial judge after a Walker hearing. Following trial, defendant appealed the propriety of the trial court’s ruling only as to the June 28, 1978 statement. The Court of Appeals ruled that the June 28 statement was involuntary and stated that on retrial the June 26 statement should likewise be excluded because it suffered from the same deficiencies as the June 28 statement. It is the propriety of this ruling that is before this Court.
People v Bradley
Jerry Bradley was jury convicted of first-degree murder, MCL 750.316; MSA 28.548, and breaking and entering an occupied dwelling with intent to commit a larceny, MCL 750.110; MSA 28.305. At the sentencing, the trial judge stated, "I’m persuaded by research that the underlying felony of the breaking and entering merges into the first-degree murder conviction when there’s a finding of guilty of first-degree murder.” Therefore, the trial judge only sentenced defendant on the murder conviction. Defendant received a sentence of life imprisonment for that conviction. The Court of Appeals affirmed, and we granted leave to appeal.
On November 25, 1978, the body of Kenneth Smith was found lying in the driveway of a Cass County, Michigan, home. An autopsy indicated that the cause of death was multiple blows, particularly one severe crushing blow to the head. The home, in the driveway of which the deceased’s body had been found, was robbed. Certain automobile parts belonging to Daniel Alexander were discovered at the scene, and an eyewitness told police that the defendant may also have been involved.
The defendant was requested to voluntarily come to the police station on November 29, 1978. He complied with the request. Following a discussion that evening, the defendant agreed to return the next morning for the purpose of taking a polygraph examination. After taking the examination, the defendant was questioned for a couple of hours before other officers arrived with a warrant for his arrest.
The defendant was subsequently taken to an "I.D.” room in the Cass County Sheriffs Department. At that time, the defendant asked the officers present what would happen to a man who was with someone who killed another, but did not participate in the killing. The defendant also intimated that he might be interested in making a deal. The officers told the defendant that the prosecutor could better answer his question and that the prosecutor was the only one who could make deals. Defendant then expressed a desire to speak with the prosecutor. When the prosecutor arrived, the defendant asked the prosecutor the same question he had previously asked the police officers. The defendant was provided with an answer, and no further conversation ensued.
An officer again spoke with the defendant on the night of November 30 and the early morning of December 1. No incriminating statements were made during either of those conversations.
At about 10 a.m. on December 1,1978, Detective David Gizzi asked to speak with the defendant. Detective Gizzi told the defendant that if he did not commit the actual killing, gave a statement, and testified against Mr. Alexander, defendant would only be charged with breaking and entering instead of first-degree murder. Defendant expressed an interest in being released on bond, and Detective Gizzi told defendant that while no bond could be set for one against whom a first-degree murder charge was pending, he was sure that a reasonable bond would be set on a breaking and entering charge. The defendant then gave an oral confession to Detective Gizzi and later repeated the confession for the purpose of permitting it to be recorded.
The defendant later refused to take the stand against Mr. Alexander, contending that he had not agreed to testify. Detective Gizzi acknowledged that defendant was reluctant to testify, but stated that he ultimately agreed to do so.
Following a Walker hearing, the trial judge ruled that a plea bargain was not involved and that defendant’s statements were voluntary and admissible. As previously noted, the Court of Appeals affirmed.
People v Norman
Alonzo Lee Norman, Jr., was convicted by a jury of four counts of first-degree murder, MCL 750.316; MSA 28.548, and one count of armed robbery, MCL 750.529; MSA 28.797, in connection with his participation in the killing of four persons during the robbery of a River Rouge jewelry store. On the murder convictions, defendant was sentenced to four life terms, and, on the armed robbery conviction, he received a prison sentence of from 100 to 150 years. The Court of Appeals reversed. We granted leave to appeal.
On December 3, 1975, the defendant was convicted by a jury in a separate case of first-degree murder, assault with intent to murder, and armed robbery. These convictions arose out of a different incident involving the killing of Bobby Jacks, Jr. While in the Wayne County Jail awaiting sentencing, the defendant contacted the prosecutor’s office and others by letter, telling them that he had certain information that might be of interest to them. Several meetings between the defendant, the Detroit police, the River Rouge police, and the prosecutor subsequently ensued. As a result of those meetings an agreement was entered into wherein the defendant agreed to identify and testify against his accomplice in the River Rouge jewelry store murder in exchange for the prosecutor’s agreement to permit defendant to plead guilty to one count of second-degree murder in the River Rouge case and, upon completion of the above testimony, to permit dismissal of the Jacks murder conviction and allow defendant to plead guilty to one count of second-degree murder in that case. The prosecutor also indicated that he would not charge defendant as an habitual offender.
In accordance with the agreement, the defendant executed written statements to the police and prosecutor which described in considerable detail the River Rouge jewelry store killings. In these statements, defendant implicated himself, an accomplice, Reginald Johnson, and others.
In this case, defendant waived his preliminary examination and was bound over for trial. He testified against his codefendant, Reginald Johnson, at the latter’s preliminary examination. Defendant identified Johnson as his accomplice in the River Rouge killings, and described the events preceding the robbery, the robbery itself, and the events that transpired thereafter. Defendant admitted killing the four persons involved.
On March 22, 1976, the defendant, rather than plead guilty, expressed a desire to go to trial. Trial began on April 20, 1976. Defendant’s motion to suppress his testimony given at Johnson’s preliminary examination was denied. Following trial, defendant appealed the trial judge’s ruling, and the Court of Appeals reversed.
People v Cooper
Timothy Landry Cooper was charged and was convicted by a jury of wilfully and maliciously burning a building. MCL 750.73; MSA 28.268. The defendant’s conviction resulted from his involvement in the burning of a residence he owned. The defendant was sentenced to pay a fine and costs of $2,100, and to serve six months in jail and five years on probation. The Court of Appeals reversed, and we granted leave to appeal.
It seems that defendant’s insurance adjuster suspected that the fire had been deliberately set and thus requested an investigation. Pursuant to that request, State Trooper Richard Rowley, Sergeant Rowhetter of the Fire Marshal’s Division of the State Police, an insurance adjuster, and two local firemen agreed to meet at defendant’s residence on November 2, 1979, to conduct an investigation. The defendant was also invited and decided to accompany the men. Following the investigation, Sergeant Rowhetter informed Officer Rowley that it was his opinion that the fire was not of natural origin.
To begin his investigation, Officer Rowley decided to start by questioning the defendant, whom Officer Rowley had known for four to five years through frequent contact at a local restaurant where defendant was formerly employed. After the investigation of the home, the defendant had agreed to meet with Officer Rowley at a service station owned and operated by the defendant. The two men talked inside the service station for a few minutes, but soon moved to Officer Rowley’s car because of a disruption caused by customers.
It seems that at some point during their conversation, Officer Rowley became suspicious of the defendant. Finally, he told the defendant that if the defendant was in any way involved in the fire, he would like to know about it. The defendant denied any involvement. Officer Rowley reminded the defendant that they had known each other for four to five years and asked the defendant if he had ever given defendant a bad deal. The officer told defendant that if he confessed it would be made known in the officer’s report, and that nobody would "kick him in the teeth because he cooperated.” At this point defendant confessed. After defendant spoke with his father, who was attending to the operation of the service station, defendant was taken to the police station where he executed a handwritten confession.
Following a Walker hearing, the trial judge declined to suppress the confession. The Court of Appeals reversed.
III. Constitutional Basis for Admissibility of Confessions
Under Michigan law, initially the admissibility of confessions was governed solely by common law, which adhered to the rule that involuntary confessions were inadmissible. See People v Wolcott, 51 Mich 612; 17 NW 78 (1883); Flagg v People, 40 Mich 706 (1879). But see People v Thomas, 9 Mich 314, 317 (1861) (opinion of Campbell, J.). In fact, in People v Owen, 154 Mich 571; 118 NW 590 (1908), this Court specifically disavowed the notion that an extra-judicial confession could be rendered inadmissible on the ground that it was given in violation of the defendant’s constitutional right against self-incrimination. But see People v Owen, supra, p 580 (Moore, J., dissenting); People v Thomas, supra, p 317 (opinion of Campbell, J.).
Subsequently, however, this Court recognized a constitutional basis for the rule. In People v Cavanaugh, 246 Mich 680; 225 NW 501 (1929), this Court recognized that the admission of an involuntary confession at trial violated defendant’s right to "due process.” Although Cavanaugh did not specifically cite any constitutional provision for support, it was decided at a time when the federal due process guarantee against the admissibility of involuntary confessions had not been held applicable to the states. Hence, it seems that the Cavanaugh Court must have been relying upon the Michigan constitutional guarantee of due process. Const 1908, art 2, § 16. See Const 1963, art 1, § 17.
In People v Hamilton, 359 Mich 410; 102 NW2d 738 (1960), this Court clarified any ambiguity present in Cavanaugh by making it abundantly clear that the Due Process Clause in the 1908 Michigan Constitution prohibited the admission of an involuntary confession. Const 1908, art 2, § 16. That provision, in pertinent part, provided:
"No person shall ... be deprived of life, liberty or property, without due process of law.”
The 1963 Michigan Constitution contains exactly the same provision. Const 1963, art 1, § 17.
Ultimately, however, this Court, like its federal counterpart, also found that the right against self-incrimination provided a basis for holding involuntary confessions inadmissible. In People v Louzon, 338 Mich 146; 61 NW2d 52 (1953), decided before the federal self-incrimination guarantee against the admissibility of involuntary confessions was made applicable to the states, this Court indicated that the Self-Incrimination Clause in the Michigan Constitution prevented involuntary confessions from being used in state trials. People v Louzon, supra, pp 153-154. See Const 1908, art 2, § 16. The provision of the Michigan Constitution then applicable was Const 1908, art 2, § 16, which in relevant part read:
"No person shall be compelled in any criminal case to be a witness against himself. . .
Its successor in the 1963 Michigan Constitution is art 1, § 17, which contains exactly the same language as that present in Const 1908, art 2, § 16.
Under federal case law, as under the Michigan experience, the admissibility of confessions, once tested by common-law rules, see, e.g., Wilson v United States, 162 US 613, 621-623; 16 S Ct 895; 40 L Ed 1090 (1896); Pierce v United States, 160 US 355; 16 S Ct 321; 40 L Ed 454 (1896), is now governed by constitutional provisions. See, e.g., Malloy v Hogan, 378 US 1, 6-9; 84 S Ct 1489; 12 L Ed 2d 653 (1964); Burdeau v McDowell, 256 US 465, 474-475; 41 S Ct 574; 65 L Ed 1048 (1921); Bram v United States, 168 US 532, 542; 18 S Ct 183; 42 L Ed 568 (1897). In federal courts, both the due process right to a fundamentally fair trial and the self-incrimination right against compelled testimonial disclosure, as protected by the Fifth Amendment, prohibit the use at trial of involuntary confessions. United States v Powe, 192 US App DC 224, 229, fn 5; 591 F2d 833 (1978). That amendment, in pertinent part, reads:
"[N]or shall any person ... be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .”
In Brown v Mississippi, 297 US 278; 56 S Ct 461; 80 L Ed 682 (1936), the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment, which provides that no state shall "deprive any person of life, liberty, or property without due process of law . . .,” prevented the use of involuntary confessions in state trials. Subsequently, in Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964), the United States Supreme Court declared that additional protection against the use of involuntary confessions in state trials was afforded by the incorporation into the Due Process Clause of the Fourteenth Amendment, of the Fifth Amendment’s protection against self-incrimination. See United States v Bernett, 161 US App DC 363, 370, fn 37; 495 F2d 943 (1974) (opinion of Robinson, J.). Hence, under federal law, a defendant may invoke either his due process right or his right against self-incrimination in attacking an involuntary confession.
In light of the foregoing, it is clear that an involuntary confession is inadmissible under both the state and federal constitutions on the ground that such admission would violate a defendant’s due process right to a fundamentally fair trial and his self-incrimination right against compelled testimonial disclosure. In making our decision today, however, we rely solely upon the Due Process and Self-Incrimination Clauses of the Michigan Constitution. Const 1963, art 1, § 17. Since these provisions provide an adequate basis for our decision, we find it unnecessary to reach the federal constitutional issue.
Although we do not reach the federal question, we will, to some extent, look to cases interpreting the relevant federal provisions. Inasmuch as the Michigan and federal provisions are almost identical, a review of foreign cases interpreting the federal constitution should prove instructive in our endeavor to glean the true meaning of Const 1963, art 1, § 17.
IV. History of Admissibility of Confessions Induced by Promises of Leniency
Most authorities acknowledge that promises of leniency can render a confession involuntary and inadmissible. See, e.g., 3 Wigmore, Evidence (Chadbourn rev), §§ 834-839; 3 Wharton, Evidence (13th ed), §§ 680-682; 29 Am Jur 2d, Evidence, § 558 et seq. In fact, in People v Barker, 60 Mich 277, 295; 27 NW 539 (1886), we stated that only "[confessions voluntarily made, not induced by threats, or by a promise or hope of favor, are admissible in evidence in criminal cases” (emphasis added). See People v Wolcott, supra; Flagg v People, supra. The real question is under what circumstances will a promise of leniency render a confession involuntary. More particularly, the issue is whether, in determining the voluntariness of a confession, a promise of leniency is merely one of many factors to consider, see People v Langford, 76 Mich App 197; 256 NW2d 578 (1977), lv den 403 Mich 835 (1978), cert den 440 US 964 (1979) (totality of the circumstances approach); or, whether a promise of leniency which alone induces a confession is sufficient to render the confession involuntary, see People v Pallister, 14 Mich App 139; 165 NW2d 319 (1968) (per se approach). In deciding this issue, we must keep in mind the fact that Const 1963, art 1, § 17, should be construed liberally. Moll v Danziger, 238 Mich 39, 42; 213 NW 448 (1927), citing Joslin v Noret, 224 Mich 240; 194 NW 983 (1923).
In People v Jones, supra, this Court split over substantially the same issue presented herein. Jones involved a confession given in connection with an aborted plea bargain which the defendant had solicited. This Court unanimously held that the defendant’s confession was inadmissible, but divided equally as to the basis therefor. Justice Kavanagh, in an opinion concurred in by myself and Justice Levin, adopted what has been labeled a "per se” approach. Justice Kavanagh, relying upon the Fifth Amendment’s protection against compulsory self-incrimination, stated that the confession given by the defendant therein was involuntary and inadmissible per se because it had been obtained by a promise of leniency given in accordance with the plea agreement.
Justice Ryan authored the opposing opinion, which was concurred in by Justices Coleman and Fitzgerald. He criticized the adoption of a per se test, reasoning that neither logic nor case law supported such a position. He concluded that the proper test was "totality of the circumstances.” Justice Ryan, however, did not base his conclusion that defendant’s confession was inadmissible on the ground that it was involuntary under the totality of the circumstances. Rather, Justice Ryan held that defendant’s confession was inadmissible under MRE 410, which excludes statements made in connection with guilty pleas and offers to plead guilty.
Currently, consideration of a proper test to determine the admissibility of confessions induced by a promise of leniency focuses on whether the strict per se approach or a totality of the circumstances approach should be adopted. While both of these tests find some support in law and policy, we find more compelling the test that we would adopt today.
The per se approach is usually derived from Bram v United States, 168 US 532; 18 S Ct 183; 42 L Ed 568 (1897), the pivotal United States Supreme Court opinion. Bram is the source of most of the controversy in this area.
In Bram, the defendant was charged with killing the captain of a ship while on the high seas. The crew arrested Bram, suspecting that he had committed the crime, and placed him in irons. Upon reaching port, the defendant was turned over to the authorities of Halifax, Nova Scotia. While awaiting action by the United States consul, the defendant was brought from his place of confinement to the office of a detective. While alone with Bram, the detective caused him to be stripped. The detective then proceeded to question Bram. The detective told Bram that a shipmate had seen Bram commit the crime. Bram responded, " 'He could not have seen me [from] where he was.’ ” Bram, supra, p 539. These inculpatory statements were admitted at defendant’s trial.
The United States Supreme Court reversed Bram’s conviction on the ground that his statements were involuntary. In the course of its discussion, the Court set forth the following rule:
" 'But a confession, in order to be admissible, must be free and voluntary: that is, 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. ... A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.’ ” Bram, supra, pp 542-543, 565, quoting 3 Russell, Crimes (6th ed), p 478 (emphasis added).
The foregoing language has been construed literally by some courts, resulting in what has been labeled a per se approach. See, e.g., Gunsby v Wainwright, 596 F2d 654 (CA 5, 1979), cert den 444 US 946 (1979); McLallen v Wyrick, 498 F Supp 137 (WD Mo, 1980); People v Jones, supra (opinion of Kavanagh, J.); Ashby v State, 265 Ind 316; 354 NE2d 192 (1976); Fex v State, 386 So 2d 58 (Fla App, 1980). Under a strict per se approach any promise "however slight” is sufficient to vitiate a confession. Moreover, there is really no critical inquiry into causation "for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.” Bram, supra, pp 543, 565.
Courts adhering to the totality of the circumstances approach reject the above interpretation of Bram, holding that the Bram language which seemingly supports a per se rule is merely dicta and that the Court in Bram really applied a totality test. See, e.g., United States v Ferrara, 377 F2d 16 (CA 2, 1967), cert den 389 US 908 (1967); United States v Williams, 447 F Supp 631 (D Del, 1978); People v Jones, supra, p 373 (opinion of Ryan, J.); State v Hutson, 537 SW2d 809 (Mo App, 1976). For instance, the language relied upon by Justice Ryan in Jones to support the proposition that Bram applied a totality test is the following:
"In approaching the adjudicated cases for the purpose of endeavoring to deduce from them what quantum of proof, in a case presented, is adequate to create, by the operation of hope or fear, an involuntary condition of the mind, the difficulty encountered is, that all the decided cases necessarily rest upon the state of facts which existed in the particular case, and, therefore, furnish no certain criterion, since the conclusion that a given state of fact was adequate to have produced an involuntary confession does not establish that the same result has been created by a different although somewhat similar condition of fact. . . .
"The first of these statements but expresses the thought that whether a confession was voluntary was primarily one of fact, and therefore every case must depend upon its own proof.” Bram, supra, pp 548-549.
The courts adhering to the totality test also cite a number of other United States Supreme Court cases which they interpret as supporting the adoption of that test. The cases cited include Mincey v Arizona, 437 US 385; 98 S Ct 2408; 57 L Ed 2d 290 (1978), Clewis v Texas, 386 US 707; 87 S Ct 1338; 18 L Ed 2d 423 (1967), and Haynes v Washington, 373 US 503; 83 S Ct 1336; 10 L Ed 2d 513 (1963). Under the totality test, a court looks to the totality of the circumstances to determine whether the defendant’s will was overborne in light of all the surrounding circumstances. The existence of a promise of leniency is only one of many factors considered. Every fact that has any relevance is taken into consideration in ascertaining the voluntariness of the confession, including the details of the interrogations and the characteristics of the defendant. Many of the cases relied on by the "totality” courts involved threats as well as promises, whereas here we look to the promise exclusively as far as voluntariness goes.
Today, we would reject both the totality of the circumstances and strict per se tests as they apply to cases involving only promises of leniency and would adopt the simple rule that a confession caused by a promise of leniency is involuntary and inadmissible. There must be a promise and that promise must cause the confession.
We will now consider our analysis of the cases in this area. In general, we find the cases cited by those adhering to the totality test do not involve promises of leniency and hence are inapposite. The cases that are relied upon to support a strict per se rule do not in fact support such a rule. Most of those cases simply reiterate the Bram rule, but find it either inapplicable to the facts of the case or fail to expatiate on its application. The cases cited by those advocating the per se rule do, how ever, support the proposition that a confession induced by a promise of leniency is involuntary.
A. Michigan Law
There is no precedentially binding Michigan Supreme Court authority that directly addresses the issue of whether a confession induced by a promise of leniency is involuntary. Nonetheless, this Court’s decisions seem to support a rule that would render involuntary and inadmissible any confession induced by a promise of leniency.
For over one hundred years this Court has recognized that promises or inducements may render a confession involuntary. In Flagg v People, 40 Mich 706 (1879), the defendant confessed after being threatened, implicitly promised leniency, furnished alcohol, and interrogated while handcuffed in a locked room. The defendant, inter alia, argued that "any promise or inducement, however slight” was sufficient to render a confession inadmissible. The prosecution seems to have conceded this statement of the law inasmuch as his counterargument was merely that "the burden of proving that an inducement has been held out . . . rests on the prisoner . . . .” Flagg, supra, pp 707-708. This Court, holding that the confession was involuntary, stated:
"When a party under arrest is told by the officer that the best thing he can do is to own up — that he had better make a statement; — when it is supposed that a statement can be forced — 'knocked’—out of him because 'he was a weak one;’ when intoxicating liquors are furnished him to aid in the forcing process; and when on the following morning he is taken in irons to the office of an attorney, and there, in the presence of those hostile to him, with bolted doors, is interrogated, his answers reduced to writing and sworn to, it is idle to say that such a confession was free and voluntarily made, even although the witnesses may testify that no inducements were made or held out to him. See People v Thomas, 9 Mich 318.” Flagg, supra, p 709 (emphasis added).
In the context of the arguments of the parties, as above noted, this statement by the Flagg Court seems to sanction defendant’s statement of the law that a promise, "however slight,” will cause the ensuing confession to be declared involuntary.
Other than the above noted brief indication that the Flagg Court approved of the rule propounded by the defendant therein, Flagg provides little guidance. The Court did not formally embrace the rule and gave no indication as to how the rule should be construed nor how it would be applied.
This Court gave credence to the rule that a promise of leniency will render a confession involuntary in People v Wolcott, 51 Mich 612; 17 NW 78 (1883). The defendant in Wolcott was questioned throughout the night and following certain promises and threats, the defendant confessed. This Court, holding the confession involuntary, expressed its disdain for the process of obtaining confessions through the use of promises and threats. We implied that while the promises alone would have been sufficient to render the confession involuntary, the additional existence of threats made the confession even more objectionable:
"If the statement of the respondent is believed, not only were promises of favor held out to him as an inducement to confess, but he was threatened with personal violence while in confinement; and though the party accused of the threats denies them, we find sufficient in the evidence of witnesses for the people to convince us that the respondent was treated in a manner which was altogether unwarranted.” Wolcott, supra, pp 614-615.
Unfortunately, this Court again was not in a position to consider promises exclusively. Wolcott involved more than just a promise of leniency, and hence the analysis was broader in scope than it otherwise would have been. This prevented any real application or development of the promise of leniency rule.
A third case which tends to support the proposition that a confession induced by a promise of leniency is involuntary is People v Barker, 60 Mich 277; 27 NW 539 (1886). In Barker a detective masquerading as a Chicago attorney obtained a confession from one of the defendants. There was no question that this confession was inadmissible because it had been procured through the use of artifice and deception. The controversy centered on the testimony of a prisoner who had conversed with one of the defendants while both were incarcerated. The defendants alleged that any communications made to the prisoner were tainted by the aforementioned impropriety. This Court held that the subsequent confessional communication was not tainted, but emphasized that if the original confession to the detective had been induced "by a promise or hope of favor . . .,” the subsequent communication by the defendant to the prisoner would have been inadmissible. Barker, supra, p 295. This Court also indicated that extra-judicial confessions are of "the lowest grade . . . .” Barker, supra, p 295. Thus, although the Barker Court upheld the admissibility of the inmate’s testimony, it expressed its concurrence in the rule of law that renders involuntary a confession induced by a promise of leniency or hope of favor. Again, however, as with its predecessors, Barker does not provide any clue as to practical application, in spite of its expressed disapproval of inducing confessions with promises of leniency.
We conclude that, although Barker, Wolcott, and Flagg, are not direct authority for the rule that confessions induced by promises of leniency are involuntary, these cases refer with approval to such a rule. In fact, these cases were subsequently cited by this Court to support just such a proposition:
"Confessions are inadmissible when induced ... by a promise of favor, made by persons apparently acting by authority. Flagg v People, 40 Mich 706; People v Wolcott, 51 [Mich] 612; People v Barker, 60 [Mich] 277.” People v Clarke, 105 Mich 169, 176; 62 NW 1117 (1895).
See also People v Cleveland, 251 Mich 542, 547; 232 NW 384 (1930); People v Brockett, 195 Mich 169, 179; 161 NW 991 (1917). To some degree, the above Michigan cases indicate support for a per se rule, especially Flagg, where the "however slight” language is used. Nevertheless, none of these cases actually employed such an analysis, and thus they are not precedentially dispositive.
We recognize that this Court has previously employed a totality of the circumstances test in determining the admissibility of confessions or inculpatory statements. See People v Paintman, 412 Mich 518; 315 NW2d 418 (1982), cert den 456 US 995 (1982); People v Brannan, 406 Mich 104; 276 NW2d 14 (1979); People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). None of these cases, however, involved the admissibility of confessions induced by promises of leniency. As such, they are inapposite.
In light of the foregoing, we conclude that Michigan case law supports the adoption of a rule making confessions induced by promises of leniency involuntary. _
B. Federal Law
Recent United States Supreme Court cases seem to support the basic proposition set forth in Bram that a confession induced by a promise of leniency is involuntary. See Hutto v Ross, 429 US 28, 29-30; 97 S Ct 202; 50 L Ed 2d 194 (1976); Brady v United States, 397 US 742, 753-755; 90 S Ct 1463; 25 L Ed 2d 747 (1970); Malloy v Hogan, supra, pp 6-7; Shotwell Mfg Co v United States, 371 US 341, 347-352; 83 S Ct 448; 9 L Ed 2d 357 (1963). These cases all reiterate the Bram rule, but fail to give any indication as to how it would be applied in a situation involving a confession induced by a law enforcement official’s promise of leniency.
In Hutto, the defendant entered into a plea agreement with the prosecution. Subsequently, and not as part of the plea agreement and not part of any other promise, the prosecutor asked the defendant to make a statement. Defendant accommodated the prosecutor, but later decided to withdraw from the plea bargain. Defendant then sought to suppress his statement.
The United States Supreme Court held that defendant’s statement was admissible and that the Eighth Circuit’s ruling that "any statement made as a result of a plea bargain is inadmissible” was erroneous. Hutto, supra, p 30. The Hutto Court stated:
"The Court of Appeals reasoned that respondent’s confession was involuntary because it was made 'as a result of the plea bargain’ and would not have been made 'but for the plea bargain.’ [Mobley ex rel Ross v Meek, 531 F2d 924, 927, 926 (CA 8, 1976)]. But causation in that sense has never been the test of voluntariness. See Brady v United States, 397 US 742, 749-750 (1970). The test is whether the confession was ' "extracted by any sort of threats or violence [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.” ’ Bram v United States, 168 US 532, 542-543 (1897); see Brady v United States, supra, at 753. The existence of the bargain may well have entered into respondent’s decision to give a statement, but counsel made it clear to respondent that he could enforce the terms of the plea bargain whether or not he confessed. The confession thus does not appear to have been the result of ' "any direct or implied promises” ’ or any coercion on the part of the prosecution, and was not involuntary. Bram v United States, supra, 542-543.” Hutto, supra, p 30.
The clear implication of this discussion is that the focus of the inquiry should be upon the "direct or implied promises,” not upon the existence of an unconnected plea bargain. Thus, had the defendant in Hutto given his statement as a result of "direct or implied promises,” the Court would have held such statement involuntary. See Gunsby v Wainwright, supra. The Court, however, fails to explicate further. As such, there is no indication as to how the Court would apply the test if they had been presented with a situation where the confession was the result of "any direct or implied promises.” Nonetheless, Hutto clearly supports the basic Bram rule.
In Brady v United States, supra, the defendant testified that he pled guilty to avoid the possible imposition of a death sentence. On appeal, the defendant, inter alia, challenged his plea as being involuntary. The Brady Court, after setting forth the Bram test, stated that Malloy v Hogan "carried forward the Bram definition of compulsion in the course of holding applicable to the States the Fifth Amendment privilege against compelled self-incrimination.” Brady, supra, p 753. Nonetheless, the Court found that the considerations present in a confession situation such as Bram were not present in a guilty plea situation.
Of similar import is Shotwell Mfg Co v United States, supra. In Shotwell, the defendants claimed that their right against self-incrimination was violated by the admission of evidence obtained through voluntary disclosures made by them in reliance upon the Treasury Department’s "voluntary disclosure policy.” This policy permitted delinquent taxpayers to escape possible criminal prosecution by disclosing their derelictions to tax authorities before any investigation had commenced against them. The Shotwell Court noted:
"It is of course a constitutional principle of long standing that the prosecution 'must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.’ Rogers v Richmond, 365 US 534, 541 [81 S Ct 735; 5 L Ed 2d 760 (1961)]. We have no hesitation in saying that this principle also reaches evidence of guilt induced from a person under a governmental promise of immunity, and where that is the case such evidence must be excluded under the Self-Incrimination Clause of the Fifth Amendment. See Bram v United States, 168 US 532, 542-543; Hardy v United States, 186 US 224, 229 [18 S Ct 183; 42 L Ed 568 (1902)]; Wan v United States, 266 US 1, 14 [45 S Ct 1; 69 L Ed 131 (1924)]; Smith v United States, 348 US 147, 150 [75 S Ct 194; 99 L Ed 192 (1954)]. The controlling test is that approved in Bram: ' "a confession, in order to be admissible, must be free and voluntary: that is, . . . not. . . obtained by any direct or implied promises, however slight ....”’ Bram v United States, supra, 542-543. Evidence so procured can no more be regarded as the product of a free act of the accused than that obtained by official physical or psychological coercion.” Shotwell, supra, pp 347-348.
The Court, however, held that the evidence therein was not obtained in a manner offensive to the Fifth Amendment:
"The Treasury’s 'voluntary disclosure policy,’ addressed to the public generally and not to particular individuals, was not an invitation aimed at extracting confessions of guilt from particular known or suspected delinquent taxpayers. Petitioners’ position is not like that of a person, accused or suspected of crime, to whom a policeman, a prosecutor, or an investigating agency has made a promise of immunity or leniency in return for a statement. In those circumstances an inculpatory statement would be the product of inducement, and thus not an act of free will. No such inference, however, is allowable in the context of what happened here.” Shotwell, supra, p 348.
Consequently, although the Shotwell Court rejected the applicability of Bram to the facts present there, the Court clearly recognized that under Bram a confession would be rendered involuntary where the "investigating agency has made a promise of immunity or leniency in return for a statement.” Shotwell, supra, p 348. Like Hutto and Brady, however, Shotwell provides no real guidance in terms of actual application.
The foregoing cases all recognize the continued vitality of the Bram "promise of leniency” test by citing the "however slight” language. None of these cases states that Bram should be used in conjunction with a totality test, although Bram says that "every case must depend upon its own proof,” Bram, supra, p 549. Rather, the implication in all these cases is that a promise of leniency alone, which induces inculpatory statements, is sufficient to render those statements involuntary. This, of course, is not to say that the United States Supreme Court has never employed or recognized a totality of the circumstances test. In fact, we acknowledge that they have recognized such a test. See, e.g., Mincey v Arizona, 437 US 385; 98 S Ct 2408; 57 L Ed 2d 290 (1978); Clewis v Texas, 386 US 707; 87 S Ct 1338; 18 L Ed 2d 423 (1967); Haynes v Washington, supra. These cases, however, do not involve promises of leniency, but other forms of coercion. Whenever the Supreme Court has discussed the admissibility of confessions induced by a promise of leniency, they have typically cited Bram and strongly implied that a promise alone which induces a confession renders the confession involuntary. See Hutto, supra; Brady, supra; Shotwell, supra.
Unfortunately, neither Hutto, Brady, nor Shot-well involved situations which called for the application of the Bram test. Consequently, they provide no guidance as to whether the United States Supreme Court would apply the Bram "however slight” rule as a per se test, or would adopt a more flexible posture which could construe that case as simply standing for the basic proposition that a confession induced by a promise of leniency is involuntary.
C. Conclusion
Both Michigan and United States Supreme Court cases refer with approval to the Bram "however slight” language or language of similar import, thereby clearly demonstrating their support for the proposition that a promise of leniency alone can be sufficient to render a confession involuntary. We are, however, unable to find a single Michigan or United States Supreme Court case where the Bram rule was applied. Therefore, we are convinced that Bram should not be applied with the "literalness” that defendants advocate in urging us to adopt the strict per se rule. The courts have generally been very flexible in determining the voluntariness of confessions. For example, as previously noted, in other contexts the rule has been to ascertain the voluntariness of confessions by looking at all the surrounding circumstances to determine whether the defendant’s will was overborne. Thus, today, under Const 1963, art 1, § 17, we would adopt a test that we think comports with both the law of confessions and the law specifically relating to confessions induced by a promise of leniency. That test embodies elements of both the per se rule and the totality rule and holds that a confession induced by a law enforcement official’s promise of leniency is involuntary and inadmissible.
V. The Test
Now that we are inclined toward a constitutional rule that a confession caused by a promise of leniency is involuntary, the next question is what are the parameters of that rule. In applying the rule, we must first determine whether a promise of leniency exists, and, second, whether the promise caused the confession.
In determining whether the communication from the authorities to the defendant is sufficient to constitute a promise of leniency, we will focus upon defendant’s state of mind. Thus, it is from defendant’s perspective that we will view the alleged promises. See Grades v Boles, 398 F2d 409, 412 (CA 4, 1968); State v Orseanin, 283 NW2d 897, 900 (Minn, 1979), cert den 444 US 970 (1979); State v Jordan, 114 Ariz 452, 455; 561 P2d 1224 (1976), vacated in part 438 US 911 (1978). See also People v Robinson, 386 Mich 551, 558; 194 NW2d 709 (1972). The inquiry will be whether the defendant is likely to have reasonably understood the statements in question to be promises of leniency. See Grades, supra, p 412. See also State v Hoopes, 534 SW2d 26, 35 (Mo, 1976).
Such an inquiry will necessarily depend upon the facts and circumstances in which the language is used. See 29 Am Jur 2d, Evidence, § 565, citing Frazier v Florida, 107 So 2d 16, 23-24 (Fla, 1958). Nonetheless, we wish to emphasize that mere adjurations or exhortations to tell the truth, without more, are insufficient to vitiate the voluntariness of a confession. See People v Foster, 211 Mich 486, 493; 179 NW 295 (1920); United States v Pomares, 499 F2d 1220, 1222 (CA 2, 1974), cert den 419 US 1032 (1974); State v Dixon, 655 SW2d 547, 556 (Mo App, 1983), cert den 464 US 1072; 104 S Ct 982; 79 L Ed 2d 219 (1984); Pamer v State, 426 NE2d 1369, 1374 (Ind App, 1981); State v Tardiff, 374 A2d 598, 601 (Me, 1977). See generally 3 Wigmore, Evidence (Chadbourn rev), § 832; 3 Wharton, Evidence (13th ed), § 674; 29 Am Jur 2d, Evidence, § 565; 22 Am Jur, Proof of Facts 2d, p 555. Such adjurations and exhortations are simply not promises. However, admonitions to tell the truth, coupled with other factors which could lead the defendant to believe that it is in his best interest to cooperate may amount to a promise of leniency. In addition, the promise need not be express, as subtle intimations can convey as much as express statements. We concur with the Court in People v Pallister, 14 Mich App 139, 148; 165 NW2d 319 (1968), citing In re Valle, 364 Mich 471, 477; 110 NW2d 673 (1961), that "[t]here is no room for a distinction between tacit and express understandings.”
If from the above inquiry we determine that no promise of leniency was made, then we will pursue the matter no further. If, however, we conclude that a promise of leniency was in fact made, then we will proceed to ask whether that promise causally induced the defendant’s confession.
As in determining whether a promise exists, we will focus upon the defendant’s state of mind to determine if that promise caused him to confess. See Grades v Boles, supra, p 412; McLallen v Wyrick, 498 F Supp 137, 139 (WD Mo, 1980); State v Jordan, supra, p 455. See also People v Robinson, supra, p 558. The promise, however, must have more than an attenuated causal connection with the confession, but need not be the only or even principal motivating factor. Rather, the promise must have been one relied upon by the defendant in making his decision and one that at least in part prompted the defendant to confess. See Grades v Boles, supra, pp 412-413; State v Jordan, supra, p 455.
In the application of the foregoing test, we will not draw distinctions between promises on the basis of who initiates the bargaining. The people contend that defendants are in no position to complain that their statements are involuntary where they initiate the discussion. We disagree, and concur in the following analysis by Justice Ka.vanagh:
"The fact that the defendant initiates the bargaining does not mean that the defendant is not influenced by the state’s promises. The confession is no more reliable simply because the defendant begins the negotiating. In People v Wolcott, 51 Mich 612, 615; 17 NW 78 (1883), Justice Cooley agreed with the reasoning of many other courts and found that no reliance can be placed on admissions of guilt obtained by assurances of leniency 'for the very obvious reason that they are not made because they are true, but because, whether true or false, the accused is led to believe it is for his interest to make them.’ [Citations omitted.] However, it is no less in the defendant’s interest to accept a plea bargain when he initiates the bargaining than when bargaining is initiated by the state. Therefore, because the defendant is still influenced by the state’s promises of leniency and there is no reason to conclude that a confession pursuant to a plea bargain initiated by the state is any more reliable than the same confession when bargaining is initiated by the defendant, we find no reason to conclude that a confession is voluntary merely because the defendant initiates the bargaining.” People v Jones, supra, pp 362-363 (opinion of Kav-ANAGH, J.).
While the focus of Justice Kavanagh’s analysis is on plea discussions, his reasoning is equally applicable to discussions not involving pleas. Whether or not the defendant is influenced by a promise of leniency does not turn upon who initiated the discussions leading to the promise. If the defendant initiates the discussions, he is no less influenced by the promise than if the prosecutor initiated the discussions.
Similarly, we fail to see any reasonable basis for distinguishing between promises affecting the charges against the defendant, and promises granting a benefit to some third person. See State v Williamson, 339 Mo 1038, 1043-1045; 99 SW2d 76 (1936). Defendants are often more concerned with the welfare of relatives or close friends than they are with their own welfare. Hence, a promise to a defendant guaranteeing the release of his wife is probably more likely to induce his confession than a promise of some benefit to him. See generally 29 Am Jur 2d, Evidence, § 562; 22 Am Jur, Proof of Facts 2d, 555-559; 80 ALR2d 1428. In fact, this Court has specifically recognized that a defendant’s affection for his loved ones should not be used as a tool for prying a confession from him. See People v Robinson, supra (defendant confessed to obtain the release of his wife); People v Prestidge, 182 Mich 80; 148 NW 347 (1914) (defendant confessed after earlier hearing his wife screaming and after an officer convinced defendant that his wife should know the truth). See also Lynumn v Illinois, 372 US 528; 83 S Ct 917; 9 L Ed 2d 922 (1963); Rogers v Richmond, 365 US 534; 81 S Ct 735; 5 L Ed 2d 760 (1961).
In this regard, we likewise do not see any basis for differentiating between promises made with respect to relatives from those made with respect to intimate friends. A promise made to the defendant regarding a close friend can be just as enticing as one made to the defendant regarding a relative. The focus is properly upon the effect of the promise rather than the relationship of the parties. See Ferguson v Boyd, 566 F2d 873, 878, fn 7 (CA 4, 1977).
In accordance with the foregoing, we are convinced that the law and logic support the adoption in this state of the rule that a confession induced by a promise of leniency is involuntary and inadmissible. We must now turn to the application of our test to the cases before us._
VI. Application of Test
Before we apply the test just enunciated, we note that several of the defendants here have raised the additional issue that MRE 410 would bar the admission of their confessions. While we would decline to decide the MRE 410 issue because we granted leave only to consider whether a promise of leniency would render an extra-judicial confession involuntary, we opine that defendant Bradley is the only defendant with a viable argument. In fact, under Jones and federal cases interpreting FRE 410 and Rule 11(e)(6) of the Federal Rules of Criminal Procedure, which formerly were nearly identical to MRE 410, Bradley’s claim seems to possess considerable merit. See People v Jones, supra; United States v Robertson, 582 F2d 1356 (CA 5, 1978). Nonetheless, as noted above, we decline to base our decision on this ground.
In applying the test announced today to the facts of the five cases before us, we will employ the standard of review we have typically employed in voluntariness cases. Thus, we must examine the record and "make an independent determination of the ultimate issue of voluntariness.” If "we do not possess a definite and firm conviction that a mistake was committed by the trial judge in his ruling, we will affirm that ruling.” People v Mc-Gillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974).
In People v Conte, we think there is little doubt that a promise was in fact made and that defendant understood it to be such. The only question is whether that promise to release and not charge Kathleen Stevenson with a crime caused defendant to confess. We think that it did.
The promise clearly had more than an attenuated causal connection with the confession. In fact, the defendant testified that his sole reason for confessing was to obtain the release of Ms. Stevenson. The record supports his testimony. Defendant repeatedly stated throughout the course of his confession that he was cooperating only to help Ms. Stevenson. The authorities admitted hearing the defendant make several such statements. The prosecutor admitted that he at one point prodded the defendant by telling him that if he cooperated he would be helping Ms. Stevenson. Moreover, the authorities seem to agree that defendant felt no remorse for having committed the crime. Thus, there is no evidence that defendant confessed for any reason other than to protect Ms. Stevenson.
Finally, we note that in accordance with our previous discussion, it matters not that defendant may have initiated the negotiations, nor that the promise involved a third person who was not a relative. Defendant had lived with Ms. Stevenson for four months and helped support her and her two children. The evidence shows that his confession was given solely to protect her.
We do not possess a definite and firm conviction that the circuit court made a mistake in suppressing the confession. Accordingly, we would reverse the decision of the Court of Appeals and would remand for a new trial.
As in Conte, we think that it is clear that a promise was made in People v Meaker and that defendant understood it to be such. The authorities clearly promised defendant a reduced bond in exchange for his agreement to take an additional polygraph test and to stay away from the victim’s family. The defendant understood these terms and agreed to them. The real question in Meaker is whether this promise caused the defendant to confess. We think the answer is no.
The defendant’s freedom on bond was not condi tioned on his passing the polygraph examination or giving a new statement. The promise was not made in return for a statement. In fact, it seems that defendant’s intent throughout was to mislead and deceive the authorities rather than to cooperate and provide the authorities with the information they sought. The record gives no indication that the defendant relied upon the promise to give him a reduced bond in making his decision to inculpate himself. Although the defendant might not have given these statements but for the agreement to take a polygraph examination, "causation in that sense [is not and] has never been the test of voluntariness.” Hutto, supra, p 30. The defendant had given three statements before his arrest and had taken a polygraph examination. The second polygraph examination, which was a condition of the agreement and which we note defendant refused to take, was not for the purpose of extracting a confession, but rather to verify a prior statement. Defendant understood this purpose. The causal connection here is simply too attenuated.
In accordance with the foregoing, we do not possess a definite and firm conviction that the trial judge made a mistake in failing to suppress defendant’s statements. Therefore, we would reverse the judgment of the Court of Appeals and would reinstate defendant’s convictions.
In People v Bradley, like Conte and Meaker, we do not think that it can be seriously questioned that a promise was in fact made to the defendant. Detective Gizzi clearly offered defendant Bradley a reduced charge in exchange for, inter alia, his confession. Defendant understood this offer to be a promise of leniency. Again, the only question here deals with causation. We find the causal nexus present.
First, it is of no import that the defendant may have initiated the discussions which led to the ultimate agreement. The focus is solely on the effect of the promise. There is no indication from the record that the defendant confessed out of remorse. The defendant steadfastly denied any involvement in the incident before he was presented with the bargain. During his discussions with Detective Gizzi, the defendant expressed a desire to be released on bond. Detective Gizzi informed defendant that this could only be accomplished if defendant agreed to the terms of the bargain. Defendant then agreed. Given the reduction from first-degree murder to breaking and entering, it is not surprising that defendant agreed to make a statement. The promise made to defendant was one relied upon by him and one that in substantial part, if not solely, motivated his confession.
We are left with a definite and firm conviction that the trial judge made a mistake in failing to suppress defendant’s statements. We would reverse the judgment of the Court of Appeals and would remand for a new trial.
In People v Norman, there is again no question as to the existence of a promise of leniency. The only question here, if indeed it is a question, is whether the requisite causal nexus exists. We think it is clear that such a nexus does exist.
Again, it is of no import that the defendant initiated the discussions that led to the plea agreement. It is clear from the facts and record that the promises made in the plea agreement provided the sole motivation for defendant’s incriminating testimony. The defendant did not confess, nor at any time express any desire to confess, in the absence of the promise of leniency given by the prosecution. Nor is there any indication whatsoever that defendant offered the incriminating testimony out of remorse or an inner desire to tell the truth. We would hold that the promises given defendant in exchange for his testimony caused such testimony.
In accordance with the foregoing, we are left with a definite and firm conviction that the trial judge made a mistake in refusing to suppress defendant’s testimony. Therefore, we would affirm the decision of the Court of Appeals.
In People v Cooper, unlike the previous four cases, the existence of a promise is not so clear. Nonetheless, we are persuaded that a promise of leniency was given to the defendant and most importantly that defendant is likely to have reasonably understood the statements made to him to be a promise.
As noted earlier, the determination of whether a promise was made and understood will depend upon the facts and circumstances in which the language was used. In addition, we must view the comments made to the defendant from the defendant’s perspective.
In Cooper, the defendant had no prior criminal experience. He was placed in a State Police patrol car and accused of being involved in the setting of a fire. Officer Rowley admitted that the defendant became upset after he was placed in the patrol car and questioned. Despite defendant’s denial of any involvement, Officer Rowley emphasized their relationship, told defendant he could confide in the officer and reminded defendant that he had never given the defendant a bad deal. In this context, Officer Rowley proceeded to tell the defendant that his cooperation would be expressed in the officer’s report and that no one would kick defendant in the teeth if he cooperated. It was at this point that defendant confessed.
We think that under the above circumstances defendant is likely to have reasonably understood the officer’s comments to be a promise of leniency. As earlier noted, "[t]here is no room for a distinction between tacit and express understandings.” People v Pallister, supra, p 148, citing In re Valle, supra, p 477. In fact, the defendant testified that he understood Officer Rowley’s comments to mean that if he cooperated he would receive a lighter sentence.
The next question is whether the promise of leniency caused the defendant’s confession. We would hold that it did. The defendant denied any involvement in the fire until the officer extended defendant a promise of leniency. There is no evidence that the defendant confessed out of remorse or any other inner desire to tell the truth. While the officer’s promise may not have been the sole factor causing defendant to confess, we think that defendant relied upon that promise and that it, at least in significant part, prompted his confession.
We have a definite and firm conviction that the trial judge made a mistake in declining to suppress defendant’s confession. We would affirm the judgment of the Court of Appeals.
VII. Conclusion
Today we have adopted a position that we think best comports with the constitution, the common law, and public policy. We would hold that under Const 1963, art 1, § 17, a confession or inculpatory statement induced by a law enforcement official’s promise of leniency is involuntary and inadmissible as follows. In determining whether the confession or inculpatory statement was induced by a promise of leniency, the first inquiry is whether defendant is likely to have reasonably understood the official’s statements to be a promise of leniency, and the second inquiry is whether the promise was one relied upon by the defendant in making his decision to offer an inculpatory statement and one that prompted him in fact to give that statement. If the answer to either of these questions is negative, the statements are admissible. If the answer to both questions is affirmative, the inculpatory statement is involuntary and inadmissible.
In accordance with this test and the foregoing application thereof to the five cases before us, we would issue the following orders:
In Conte, we would reverse the judgment of the Court of Appeals and would remand for a new trial.
In Meaker, we would reverse the judgment of the Court of Appeals and would reinstate defendant’s convictions.
In Bradley, we would reverse the judgment of the Court of Appeals and would remand for a new trial.
In Norman, we would affirm the decision of the Court of Appeals.
In Cooper, we would affirm the decision of the Court of Appeals.
Kavanagh and Levin, JJ., concurred with Williams, C.J.
Boyle, J.
We granted leave in these cases and directed the parties to brief the issue as to whether the defendants’ confessions were involun tary because improperly induced by promises of leniency.
We would hold that a defendant’s inculpatory statement is not inadmissible per se if induced by a promise of leniency, and that admissibility is to be determined, given the totality of the circumstances, by whether the prosecution has demonstrated that the statement is voluntary.
We would affirm the judgment of the Court of Appeals in People v Conte and People v Bradley; we would reverse the judgment of the Court of Appeals in People v Meaker and People v Cooper and reinstate the trial court’s judgment. In People v Norman, we would reverse and remand to the Court of Appeals.
I
In People v Jones, 416 Mich 354; 331 NW2d 406 (1982), cert den 460 US 1084; 103 S Ct 1775; 76 L Ed 2d 347 (1983), the participating members of the Court agreed that the defendant’s statement was inadmissible. The Court divided, however, in the rationale of the Jones result, with three justices applying a rule of inadmissibility per se to an inculpatory statement made as a result of a law enforcement officer’s promise of leniency "however slight,” and three justices opining that the proper test of admissibility is the voluntariness of the statement.
Three basic issues are presented by some or all of these appeals. First, whether a rule of exclusion per se is required by reason of the command of the United States Constitution, or by precedent of this Court; second, assuming a negative answer to the first question and adoption of a totality of the circumstances test of voluntariness, whether the particular statements in each case are admissible; and third, whether the statements are inadmissible under MRE 410.
We conclude that Bram v United States, 168 US 532; 18 S Ct 183; 42 L Ed 568 (1897) does not compel the conclusion that federal law requires that a confession prompted by any concession, however slight, is inadmissible. In Bram, the defendant, who was in custody aboard a ship, on an accusation of murder, was forced to strip and thereafter gave an inculpatory statement. As the United States Supreme Court thereafter noted, Bram was in fact a determination that
"[i]n such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess.” Brady v United States, 397 US 742, 754; 90 S Ct 1463; 25 L Ed 2d 747 (1970). (Emphasis added.)
The United States Supreme Court has never adopted a rule excluding inculpatory statements per se. In some thirty different cases decided between Brown v Mississippi, 297 US 278; 56 S Ct 461; 80 L Ed 682 (1936), and Escobedo v Illinois, 378 US 478; 84 S Ct 1758; 12 L Ed 2d 977 (1964), the Court decided the issue of voluntariness of a defendant’s confession for purposes of the Fourteenth Amendment.
"Those cases yield no talismanic definition of 'voluntariness,’ mechanically applicable to the host of situations where the question has arisen ....
"This Court’s decisions reflect a frank recognition that the Constitution requires the sacrifice of neither security nor liberty ....
"In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances, Schneckloth v Bustamonte, 412 US 218, 224, 225, 226 [93 S Ct 2041; 36 L Ed 2d 854] (1973).”
"A per se approach is not supported by precedent,” People v Jones, supra, p 375 (opinion of Ryan, J.).
The totality of circumstances rule is consistent with the underlying reason for excluding involuntary confessions, that is, that the nature of a threat or promise is such that the accused might be led to make a statement, regardless of its truth or falsity, 3 Wigmore, Evidence, §§ 821, 822.
We recognize that establishing a "bright line” test such as that advanced by Justice Kavanagh in Jones, supra, would have the virtue of avoiding difficult factual interpretations by the trial and appellate courts, as well as obviating the clear potential for conviction that an erroneously admitted statement would pose. Nevertheless, we conclude that the totality of circumstances test strikes the appropriate balance between the admission of highly probative and relevant evidence and inadmissibility of a statement deemed unreliable because of the coercive effect of the offered inducement. A contrary analysis would lead to the exclu sion of otherwise highly probative evidence, despite the fact that there was no indication that the concession offered actually operated to render the defendant’s statement involuntary, that is, not a product of his own volition. The totality of circumstances test "is 'judicial’ in its treatment of one case at a time [citation omitted], flexible in its ability to respond to the endless mutations of fact presented, and ever more familiar to the lower courts.” Miranda v Arizona, 384 US 436, 508; 86 S Ct 1602; 16 L Ed 2d 694 (1966) (Harlan, J., dissenting).
The totality of circumstances test for voluntariness requires consideration of a multiplicity of factors, including, but not limited to, the nature of the inducement, Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970), the length and conditions of detention, Haynes v Washington, 373 US 503; 83 S Ct 1336; 10 L Ed 2d 513 (1963), the physical and mental state of the defendant (including his age, mentality, and prior criminal experience), Lynumn v Illinois, 372 US 528; 83 S Ct 917; 9 L Ed 2d 922 (1963), the conduct of the police, Reck v Pate, 367 US 433; 81 S Ct 1541; 6 L Ed 2d 948 (1961), and the adequacy and frequency of advice of rights, Miranda v Arizona.
If, after considering all relevant factors, the court concludes that the inducements offered did not overcome the defendant’s ability to make a voluntary decision to make a statement, the statements) will be admissible. In all such cases, the burden is on the people to demonstrate voluntari ness by a preponderance of the evidence, Lego v Twomey, 404 US 477; 92 S Ct 619; 30 L Ed 2d 618 (1972).
II
We apply the totality of circumstances test and the enumerated factors to the cases before us to conclude that in each instance the statement was not the product of a situation which overbore the defendant’s will, Rogers v Richmond, 365 US 534; 81 S Ct 735; 5 L Ed 2d 760 (1961).
Augustino Conte was arrested in connection with a robbery and shooting death at the Arts & Gems jewelry store. On the day following his arrest, on the way to arraignment, Conte volunteered that if he could help himself he could give information on some other murders. Some time thereafter appellant was interviewed by an assistant prosecutor. He was advised of his rights, and indicated he would talk about other murder cases in exchange for the prosecutor’s agreement not to charge his paramour Kathleen Stevenson in any of the murders. Appellant was told there would be no deals as to the Arts and Gems murders or any other case with which he was involved.
We conclude that the promise solicited by the defendant to benefit his girlfriend did not overbear appellant’s will and that the statement was voluntary. The promise was of a collateral benefit rather than a direct benefit to the defendant, and it was solicited by him. Although there could conceivably be circumstances in which the nature of a collateral benefit might be such as to render a statement involuntary, where, as in the instant case, the speaker obtained no direct benefit to himself, it is less likely that the statement has been induced by fear or hope as to the charge which the accused faces. Likewise, while a promise which was solicited by an accused might be thought to demonstrate the importance of the concession and might, in combination with police exploitation, render a statement involuntary, see, e.g., People v Clark, 263 Cal 2d 87, 90-92; 69 Cal Rptr 218 (1968); Ferguson v Boyd, 566 F2d 873 (CA 4, 1977) (en banc), the fact of solicitation suggests that the defendant was acting rationally and therefore tends to dissipate a claim that the statement was compelled. Anno: Police statements that if suspect confesses his relatives will be released from custody or not be arrested, as rendering confession involuntary, 80 ALR2d 1428, 1438; United States v McShane, 462 F2d 5 (CA 9, 1972); State v Anderson, 298 NW2d 63 (Minn, 1980). Defendant Conte is a 45-year-old man. There is no credible evidence that his physical condition made him vulnerable; nor is there any credible contention of undue length or improper conditions of detention or police or prosecution misconduct. We conclude therefore that defendant Conte’s will was not overborne and that his confession was voluntary.
We also conclude that MRE 410 is inapplicable in this case since defendant was not engaged in plea bargaining for reduced charges against himself.
In Meaker, the Court of Appeals found that two statements made by the defendant, following an agreement between the police, prosecution, defendant, and defense counsel to reduce defendant’s bond were involuntary. The statements were made one week after defendant’s release from custody, after advice of rights and waivers and with the knowledge by counsel that the interviews were taking place. There is no evidence in the record that defendant’s statements were other than the product of his own free will and intelligence. He and his counsel negotiated the release, thus the condition that a polygraph examination be taken was a negotiated term of the bond reduction, entered into with the assistance of counsel. Defendant was not in custody at the time either of the statements was made, he was not subjected to prolonged interrogation, and he was scrupulously advised of all of his rights. Since he never actually took the polygraph examination, the "compulsion” that must be advanced here is Mr. Meaker’s concern that his failure to respond to questions would result in the revocation of his bond and his return to jail. While the possibility of incarceration may be said to be inherently coercive, it has never been held to itself require a conclusion that a defendant’s statements were involuntary. We conclude that defendant Meaker’s statements were voluntary.
People v Bradley involves both an inducement issue and the question of the effect of MRE 410 on the admissibility of statements made in connection with an agreement to dismiss charges.
By contrast with Conte, the nature of the promise here given was a substantial benefit to defendant, the dismissal of a first-degree murder charge and a reduced charge of breaking and entering in exchange for his testimony against a codefendant. Moreover, the conduct of the police officials in response to defendant’s concerns about bond was such as to make it clear to defendant that if an agreement were reached he would likely be released on bond. We conclude, however, that the promise was not the kind of inducement "that, would, by itself, make the confession involuntary,” United States v Ferrara, 377 F2d 16, 18 (CA 2, 1967).
Defendant was not subjected to prolonged deten tion or protracted interrogation, he is of average intelligence with some college education, he was repeatedly advised of his rights, and he initiated the chain of events leading to the agreement. Analyzing the nature of the promise, the characteristics of the accused, and the details of the interrogation, we conclude that defendant Bradley’s statement was voluntary.
We further find, that MRE 410 does not bar use of defendant’s inculpatory statement. We cannot conclude from this record that defendant’s statement was made in connection with an offer or attempt to plead guilty. The statement in question was made to a law enforcement official, and the officer was acting to effectuate the bargain being offered by the prosecution. We recognize that in such a situation FRE 410 has been extended to plea discussions. United States v Grant, 622 F2d 308 (CA 8, 1980). We have not discovered a case decided under a correct construction of Rule 410 or Rule 11(e)(6) which would extend the rule of inadmissibility to a situation that did not involve some plea reference. Accordingly, we conclude that MRE 410 did not preclude use of the statement made to Detective Gizzi on December 1, 1978. In People v Norman, the issue is the admissibility of prior testimony as part of a partially executed plea bargain. In pertinent part, the facts are that, having previously been convicted of first-degree murder and while awaiting sentence, defendant contacted the prosecutor’s office and negotiated an agreement to testify against his accomplice in four other killings, Reginald Johnson, in exchange for an agreement to permit him to plead guilty to second-degree murder (the Allen Jewelry Company killings). A preliminary examination was held in the Allen Jewelry case. Defendant waived his own examination, testified that Johnson was his accomplice, and described in detail the circumstances of the robbery-murder; thereafter defendant declined to plead guilty to second-degree murder. His testimony at the examination was admitted over objection of counsel at his trial, and defendant was convicted of felony murder and armed robbery.
There is no doubt that defendant’s testimony was given in fulfillment of his plea bargain agreement. MRE 410 was not adopted until March 1, 1978, after the date of the event here in question, and thus does not control the outcome of this case. We proceed therefore to an analysis of pre-Rule 410 case law.
We are unable to agree with the Court of Appeals conclusion that MRE 410 was consistent with prior Michigan law. While it is true that evidence of a previously withdrawn plea of guilty was inadmissible prior to the adoption of MRE 410, People v Street, 288 Mich 406; 284 NW 926 (1939), People v Lombardo, 301 Mich 451; 3 NW2d 839 (1942), People v MacCullough, 281 Mich 15; 274 NW 693 (1937), and People v Mulvaney, 171 Mich 272; 137 NW 155 (1912), would all appear to support the proposition that statements of a defendant, as distinct from an actual plea of guilty were admissible. We conclude that prior to MRE 410 Michigan law was unclear on this issue.
We áre also persuaded that defendant’s statement was an admission, MRE 801(d)(2), and not a statement against penal interest, MRE 804(b)(3).
Defendant’s testimony at preliminary examination was a confession that he had executed four persons by means of one shot into the head of each person. It was given in the context of an agreement that defendant would be convicted of second-degree murder by his subsequent plea in this cause. Hence, there was no requirement of unavailability or of a finding that the statement was so far against his interests that a reasonable person would not have made the statement unless it were true. MRE 804(b)(3).
We conclude that the only potential barrier to the admission of this testimony is the fact that it was given as the result of an inducement. We further find that the statement was voluntary. The bargain was solicited by a sophisticated suitor seeking to avoid a mandatory life sentence. The statement was not made while defendant was in custody, but rather was made in open court. None of the indicators of involuntariness which we have set forth today are here implicated. We have no doubt that defendant’s testimony was the product of defendant’s free will.
Finally, while we also conclude that defendant’s statement was voluntary in People v Cooper, we note that Cooper is a striking illustration of the mischief that would be produced by adoption of a rule of exclusion per se. The alleged inducement in Cooper is no more than the officer’s statement to an unincarcerated defendant, properly advised of his rights, that his cooperation would be reflected in the officer's report, but that the fact of charge and the severity of the charge would be for the prosecutor to determine. Acceptance of the per se test in this context would mean that any communication of cooperation on a defendant’s part, would render defendant’s statement inadmissible. As in every life situation which requires choice, the cases before us each present a situation where some constraint is involved, some hoped for benefit sought, and some detriment sought to be avoided. Such considerations do not, without more, suggest that the decision to speak is involuntary or that the statement is unreliable.
The judgment of the Court of Appeals should be affirmed in People v Conte and People v Bradley. In People v Meaker, People v Norman, and People v Cooper, we would vacate the judgment of the Court of Appeals. In Meaker and Cooper, we would reinstate the judgment of the trial court. Norman should be remanded to the Court of Appeals for consideration of the remaining issues.
Ryan, J., concurred with Boyle, J.
Brickley, J.
(separate opinion). I concur with the reasoning and legal standard enunciated in Justice Boyle’s opinion and with its application to the facts in all but one of the cases. For the reasons given in Justice Cavanagh’s opinion, I agree that the judgment of the Court of Appeals in People v Bradley must be reversed and the case remanded for a new trial.
Cavanagh, J.
(separate opinion, and not participating in Conte). I agree that circumstances and factors in addition to the promise of leniency should be considered in evaluating the voluntariness of statements alleged to have been induced by promises of leniency. I therefore concur in the conclusion of Section I of Justice Boyle’s opinion. I write separately, however, because I do not fully agree with several statements contained in Section II.
Justice Boyle concludes that where a defendant obtains no "direct benefit” as to any cases in which he is involved, but agrees to give a statement in exchange for some "collateral benefit” to a third party, it is less likely that his statement was induced by fear or hope. I disagree. An accused may often be more concerned with the welfare of his family, paramour, or friends than with his own welfare. I would hold that the nature of the relationship between the accused and the third party, the extent of the "collateral benefit” involved, and the presence or absence of any express or implied threats against the third party are additional circumstances to be considered in determining voluntariness. For the reasons stated in Chief Justice Williams’ opinion, I would also hold that the fact that defendant initiated the bargaining process is not particularly probative of voluntariness.
In Norman, Justice Boyle concludes that prior to the effective date of MRE 410, statements made in connection with plea negotiations were admissible. Prior case law clearly held that evidence of the plea itself was inadmissible once the plea was withdrawn. However, the admissibility of statements made in connection with pleas or offers to plead was unclear. See People v Jones, 416 Mich 354, 380, fn 8; 331 NW2d 406 (1982) (opinion of Ryan, J.), cert den 460 US 1084 (1983); MRE 410, Committee Note.
The purpose of MRE 410 is "to promote the disposition of criminal cases by compromise and to permit the unrestrained candor which produces effective plea discussions.” Jones, supra, p 364 (opinion of Kavanagh, J.). This purpose was just as valid before the rule was adopted. See Santobello v New York, 404 US 257, 260-261; 92 S Ct 495; 30 L Ed 2d 427 (1971). It would be unfair to treat defendants who give statements in connection with an offer or agreement to plead more harshly than defendants who actually plead and later withdraw their pleas. The inability to introduce statements made in a bargaining session does not place the prosecution in a worse position than it would have occupied if the defendant had not engaged in plea bargaining at all. Jones, supra, p 366. I therefore would affirm the Court of Appeals decision to suppress the statements obtained from defendant Norman in accordance with the plea agreement.
In Bradley, the defendant’s confession was obtained in connection with and during the course of what is commonly understood as "plea negotiating.” My sister agrees that "the officer was acting to effectuate the bargain being offered by the prosecution.” To hold that a dropped or reduced charge was the only result of this bargaining (instead of an actual plea of guilty or no contest), and that MRE 410 would not reach a statement made in connection therewith, would exalt form over substance. That reasoning would require admissibility to turn on the terms of the bargain rather than on the fact that a plea or charge bargain is being offered. I find such reasoning overtechnical and counter to the rule’s purpose. Because the confession here was erroneously admitted, I would remand for a new trial.
I agree with Justice Boyle’s reasoning and conclusions in Meaker and Cooper.
Cavanagh, J., took no part in the decision of People v Conte.
Other state courts have split over which test is applicable to determine the admissibility of confessions induced by promises of leniency. Those supporting the per se rule include Ashby v State, 265 Ind 316; 354 NE2d 192 (1976); Fex v State, 386 So 2d 58 (Fla App, 1980). Among the cases adhering to the totality of the circumstances test are State v Davison, 614 P2d 489 (Mont, 1980); State v Dixon, 655 SW2d 547 (Mo App, 1983), cert den 464 US 1072; 104 S Ct 982; 79 L Ed 2d 219 (1984).
We note that the federal district and circuit courts have split over the proper test applicable under these circumstances. Cases that seem to support the adoption of a per se test include Gunsby v Wainwright, 596 F2d 654 (CA 5, 1979), cert den 444 US 946 (1979); McLallen v Wyrick, 498 F Supp 137 (WD Mo, 1980). Those that favor the totality of the circumstances test include: United States v Grant, 622 F2d 308 (CA 8, 1980); United States v Ferrara, 377 F2d 16 (CA 2, 1967), cert den 389 US 908 (1967); United States v Williams, 447 F Supp 631 (D Del, 1978).
We also emphasize that the giving of Miranda warnings and advice of counsel are not determinative of a confession’s admissibility. While they may tend to indicate that defendant’s decision was an intelligent choice of available alternatives, they do not negate the pressure of inducement of the promise. People v Jones, 416 Mich 354, 363 and fn 7; 331 NW2d 406 (1982), cert den 460 US 1084 (1983), citing People v Overturf, 67 Ill App 3d 741, 744; 385 NE2d 166 (1979); State v Tardiff, 374 A2d 598, 601 (Me, 1977). Thus, again, it is the promise and the eifect of that promise that are conclusive.
The defendant testified that he made the statement because of the promise to reduce the charge.
In fact, defendant testified at trial that he gave the inculpatory testimony only to obtain concessions from the prosecutor.
Justice Riley did not participate.
Justices Kavanagh, Levin, and the Chief Justice.
Justices Ryan, Fitzgerald, and Coleman.
"Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement.”
In this connection we note that the per se rule would disadvantage defendants from seeking, or accepting, concessions advantageous to them. Since the purpose of the system is the ascertainment of truth, in the absence of unlawfully coercive circumstances there is no legitimate reason for the creation of a rule which would lead to the refusal of law enforcement officials to engage in bargaining with a defendant which is mutually advantageous to both. both the amendment and the commentary clearly indicate, an otherwise voluntary admission to a law enforcement official is not rendered inadmissible by the rule.
MRE 410 is substantially identical to FRE 410, incorporated in terms into FR Crim P 11(e), Guilty Pleas. As the Notes of Advisory Committee on Rules for the Federal Rules of Criminal Procedure explain the 1979 amendment to Rule 11(e)(6), this section is limited to discussions and agreements with the prosecuting attorney.
"It thus fully protects the plea discussion process authorized by Rule 11 without attempting to deal with confrontation between suspects and law enforcement agents. The point is that such cases are not covered by the per se rule of 11(e)(6) and thus must be resolved by that body of law dealing with police interrogations.”
The referenced amendment to FR Crim P 11(e)(6) changed the words "statements made in connection with and relevant to, a plea of guilty later withdrawn” to "any statement made in the course of plea discussions with an attorney for the government.” This language was added to make clear that even an attempt to open plea bargaining with the government’s attorney is covered by the rule of inadmissibility. United States v Brooks, 536 F2d 1137 (CA 6, 1976). However, as | [
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] |
Clark, J.
Plaintiff in making his rounds as a watchman rode a bicycle. On November 6, 1920, while passing between some piles of lumber he lost balance momentarily and, in an effort to save himself, grasped the end of a board in one of the piles. The bicycle passed from under him. He fell' and claims that he was' thereby injured. He was 64 years of age and for some time had suffered from arterio sclerosis and high blood pressure. He had occasional attacks of dizziness. He, complaining principally of an injury of his shoulder and arm, completed his duties that day with difficulty and has not worked since. He became partially paralyzed. The department of labor and industry found an accidental personal injury arising out of and in the course of the employment, that the accident resulted in disability from November 6, 1920, to June 30, 1921, that the disability ended on the last mentioned date, and awarded compensation accordingly. Defendants bring certiorari and say:
That there was no accident, that:
“If plaintiff had run over some object in his path, or his bicycle had slipped on the floor or any one of many unusual things had occurred, we would not question that he had had an accident. But not so under the facts of this case. Whatever happened to plaintiff was through his own voluntary act. What he did was done deliberately and knowingly. There was absolutely nothing unusual in this man’s falling from his bicycle. It was no unusual or fortuitous circumstance which the law requires.”
The contention has no merit. It may be that plaintiff’s fall from the bicycle was due to his inattention, carelessness or negligence. Perhaps in the emergency his attempt to prevent a fall by grasping the board was unwise. But there is neither claim nor proof that plaintiff was guilty of that wilful misconduct which would relieve defendants of liability for the consequences of an accidental personal injury arising out of and in the course of the employment. Section 5432, 2 Comp. Laws 1915.
That the accident was caused by, and the subsequent disability was due to, disease and natural infirmities of plaintiff. There is considerable testimony in the record sustaining this claim of the defendants. But the department is the trier of the facts. If the finding that the disability, cerebral hemorrhage with resulting paralysis, was attributable to an accidental personal injury under the act has evidential support it must be sustained.
Plaintiff testified:
“Q. Could it have been possible that you had a dizzy spell this time when you fell off?
“A. No, I don’t think I was dizzy, I was all right that day, some days I was worse than others.”
A physician testified:
“Q. Doctor, was there anything — he did give you some history of falling?
“A. That he had fallen off his wheel.
“Q. And injured his shoulder?
“A. And injured his shoulder.
“Q. Did the history as you received it at that time have any connection in your mind with the condition that you found there, a partial paralysis of the left side?
“A. No, at that time it did not.
“Q. Well, has it any time since or would it now?
“A. All I can say is that his fall might have been responsible for the subsequent development of the partial paralysis.
“Q. In what way, what connection would the shoulder have with the paralysis?
“A. In this way that paralysis in these cases is usually due to rupture of small vessels, the extent of the paralysis depending largely on the amount of hemorrhage as a rule.
“Q. These hemorrhages are where?
“A. In the brain.
“Q. Then your theory or your belief, doctor, is that the jar itself would cause a slight hemorrhage in the brain and thus cause what is commonly known as a cerebral hemorrhage. Isn’t it true that a cerebral hemorrhage might bring on a paralysis?
“A. Not always, as an example a man may fall on the street or suffer a fracture of the skull with hemorrhage and he may subsequently go to his home and become unconscious from the gradual accumulation of blood in the brain. That is, it depends, understand, upon the immediate extent of hemorrhage.
“Q. Do you believe that the condition that you found on the 9th was> the result of a cerebral hemorrhage?
“A. Apparently of a slight hemorrhage.
“Q. And then the history of it all, in your estimation, it would probably produce a hemorrhage?
“A. It might, especially on account of the arterio sclerotic condition of the brain, it might, I wouldn’t want to state definitely that it did.
“Q. But it would be a satisfactory explanation from the fact that the hemorrhage existed?
“A. His paralysis would, yes.
“Q. Isn’t it true, doctor, that where an arterio sclerotic condition exists and where the hemorrhage occurs without any exertion whatever, like coming on in bed, that it is usually of a more serious nature?
“A. Yes, it usually is.
“Q. And that the paralysis caused where the cerebral hemorrhage is caused by some slight accident is of a lesser nature many times than what the other kind would be?
“A. Well, it might be.
“Q. Because some smaller vessel breaks instead of the larger artery?
“A. Yes.”
And of plaintiff’s condition on June 30, 1921, a physician testified:
“Well, his paralysis has partially cleared up. His speech defect is practically cleared up, he has a little trouble at times but he still apparently has a weakness of his left leg and arm.”
Even if, as claimed, these witnesses gave other testimony in conflict with that quoted, the weight of the testimony quoted was for the department to determine. Meyers v. Railroad Co., 199 Mich. 134; Parnell v. Pungs, 190 Mich. 638.
If there were no evidence to meet the contention of defendants that plaintiff’s fall was occasioned by disease, an attack of dizziness, the holding in Van Gorder v. Packard Motor Car Co., 195 Mich. 588 (L. R. A. 1917E, 522), and like cases, might require a finding that the accidental personal injury did not arise out of and in the course of the employment. But plaintiff’s testimony that he was. “all right that day,” not dizzy, makes this case clearly distinguishable.
Because of the testimony quoted, the history of the disability and the circumstance of cerebral hemorrhage and paralysis following the fall, we cannot say that' the finding is without evidence to support it. See Kirkley v. General Baking Co., 217 Mich. 307; Paton v. Port Huron Engine & Thresher Co., 214 Mich. 130, and cases there cited. And the fact that plaintiff was predisposed because of disease to this form of attack has nothing to do with the question of whether what befell him is to be regarded as an accident. St. Clair v. A. H. Meyer Music House, 211 Mich. 285, and cases there cited.
The award is affirmed.
Fellows, C. J., and Wiest, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.
injuries arising out of and in the course of the employment within meaning of workmen’s compensation acts, see notes in L. R. A. 1916A, 40, 229; L. R. A. 1917D, 114; L. R. A. 1918F, 896.
On what constitutes serious and wilful misconduct of employees within the meaning of workmen’s compensation acts, see L. R. A. 1916A, 75, 243, 355; L. R. A. 1917D, 133.
On effect of fact that pre-existing disease contributed to injury or death on right to recover, see note in L. R. A. 1917D, 110, 129. | [
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Fellows, C. J.
July 5, 1920, on Lake street in the city of Muskegon, plaintiff’s decedent was struck and instantly killed by a taxicab owned by defendant. The . testimony unquestionably made a case of negligence on the part of the driver of defendant’s taxicab. The testimony of the witnesses called by plaintiff tended to show that decedent boarded a street car at Lincoln avenue to go to Addison street, some 8 blocks distant. The car and trailer were both crowded and decedent rode on the step. When plaintiff rested her case the proofs had established that decedent had safely alighted from the car, getting off while the car was proceeding slowly, and had taken one or more steps toward the curb without looking to ascertain what traffic was approaching. Defendant’s counsel moved for a directed verdict, a recess was had, the case was re-opened for further proof and a witness, was called who testified to seeing the accident from the sidewalk. Speaking of decedent, he said:
' “He was getting off right straight from me. I was standing on the sidewalk and it looked, as though he was — I didn’t see him hit the ground at all. It just looked as though he let loose and the next I seen him he was rolling under the back end of the car.
“Q. That front end of the car was, in your opinion, just opposite the sidewalk on Addison street?
“A. Yes, sir, maybe two or three feet on towards the center of the street, but it wasn’t any more than that.
“Q. Did you observe Mr. Quinn taking any step or stepping off the car?
“A. No, sir, I don’t believe he did. I don’t believe he even hit the pavement before he was hit. I believe that he was hit just at the time that he was leaving the step off of the street car.”
The trial judge granted defendant’s motion and directed a verdict for defendant on the ground of decedent’s contributory negligence. In this we think there was error. The testimony above quoted took that question to the jury. If decedent was struck in mid air or while still on the step and when preparing to alight, it cannot be said as matter of law that he was guilty of contributory negligence. The credit to be given this testimony was for the jury. Even though it was out of accord with all the other testimony in the case and the overwhelming weight of the evidence opposed it, still that fact would not justify a directed verdict. In re Cochrane’s Estate, 2ll Mich. 370.
The judgment must be reversed with a new trial. Plaintiff will recover costs of this court.
Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. | [
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] |
Sharpe, J.
Mary J. Granger, of Detroit, died in 1892, testate. Her daughter, Sarah J. Granger, and Andrew McLellan were named in her will as trustees to administer her estate and disburse the income as therein directed. Mr. McLellan died in 1894, and the plaintiff James H. McDonald, an attorney, became a trustee in his stead pursuant to the terms of the will and acted as such until April, . 1908, when he resigned. Sarah J. Granger then administered the estate until 1917, when she resigned. Joseph G. Lawson was then appointed trustee and acted as such until the death of Sarah J. Granger in 1920, when the trust terminated. In 1897, Joseph H. Duryea, the son of a deceased daughter of Mrs. Granger, gave a mortgage upon all his interest in the estate of his grandmother to one Bert C. Preston. In 1907, this mortgage was assigned by Preston to James H. McDonald as guardian of his daughter Martha I. McDonald, later married to one Lancashire. In 1908, and after his resignation as trustee, McDonald as guardian began foreclosure proceedings. Joseph Duryea defended, being represented by an attorney, Max Finkelston. A decree for foreclosure was granted in 1910, sale had by a circuit court commissioner, and purchase made by Mrs. Lancashire. Duryea did not redeem. The time therefor expired on February 23, 1911. In March, 1920, after the trust estate had terminated, Duryea and his wife filed a bill of complaint against Mrs. Lancashire, asking that the foreclosure proceedings be set aside as a cloud on their interest in the estate for the reason that, under the will, Duryea had no such interest in the property of the deceased as could be conveyed or incumbered. To this an answer was filed by defendant, setting up the entire proceeding had and done in connection with the matter by her father as her guardian on her behalf. On May 7, 1920, an order was made making James H. McDonald a party defendant, and on July 5th following an amended bill was filed. In this a conspiracy between McDonald and Finkelston' to defraud Duryea out of his interest in the estate is charged. It also contains general allegations of fraud, mismanagement, and misappropriation of funds by McDonald as trustee, and prays for an accounting. An answer was filed, verified under oath by McDonald. Soon thereafter the plaintiffs filed a petition asking that the defendant James H. McDonald be required to produce certain documents, books, records and papers and deposit the originals of the same with the clerk of the court, pursuant to Circuit Court Rule No. 49. An ex parte order was made as asked. Defendants then moved to vacate this order. This motion was denied, but after-wards modified and as entered and reviewed here is a denial in part. We are now asked to compel its vacation by mandamus
We cannot, within reasonable limits, consider at length the several questions discussed. Defendants insist that if the legal defenses set forth in their answer be upheld, no trial will be had and for that reason the order in question should not have been made. We cannot anticipate such action and feel constrained to pass upon the several requirements of the order. This we will do as therein paragraphed.
The first, fourth, fifth, sixth and seventh paragraphs require production of certain conveyances. There is no allegation that any of them are forgeries, nor is there any allegation that they are not all recorded in the office of the register of deeds of the county. Certified copies may easily be procured. Their discovery is, therefore, not indispensably necessary in order for plaintiffs to prepare for the trial of the cause. Cummer v. Kent Circuit Judge, 38 Mich. 351.
The third and fifth refer to insurance policies, no mention of which is made in the bill of complaint, nor does their relevancy appear’ by any allegation in the petition.
The eighth refers to the stenographer’s minutes of the trial of the foreclosure case, and the ninth to the subpoena issued and returned served in that case. The defendant, in his affidavit filed in support of the motion to vacate, says he has “no knowledge or control” of the minutes and no “possession or control” of the subpoena. Subsection 3 of section 5 of the rule provides for the vacation of the order—
“Upon the party required to make discovery denying on oath the possession or control of the books, papers or documents ordered so to be produced.”
We think his denial meets the requirement of the rule.
The tenth requires production of the original will of Mary J. Granger. This is presumably in the files of the probate court. There is no allegation in the bill that defendant has surreptitiously removed it therefrom.
The eleventh, twelfth and thirteenth refer to correspondence between McDonald and Finkelston. The bill charges a conspiracy to defraud on the part of these attorneys. Plaintiff cannot be required to produce evidence tending to establish his guilt. People v. Marxhausen, 204 Mich 559 (3 A. L. R. 413), and cases cited.
The fifteenth, sixteenth, seventeenth and eighteenth require production of books and documents kept by McDonald as a trustee of the estate. These should be open to the inspection of the beneficiaries and the originals, or copies of them, should be produced.
The order as made is vacated and set aside, with leave to renew the motion in the circuit court for an order requiring defendant to deposit such books and documents, or copies of them, within a reasonable time. If copies are produced, their verity may be established on the trial by the production of the originals under subpoena duces tecum.
The court may then see to it that the personal rights of the defendant as to his private matters are not invaded.
The plaintiffs herein will recover costs against the plaintiffs in the chancery suit.
Fellows, C. J., and Wiest, Clark, Bird, Moore, and Steere; JJ., concurred.
The late Justice Stone took no part in. this decision. | [
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] |
Steere, J.
Plaintiffs, who are property owners and residents on Ivanhoe avenue in the Tireman subdivision of the city of Detroit, filed this! bill to restrain construction by defendants of a one-story gasoline filling station which they had started on a site in said subdivision located at the southwest intersection, or comer, of Ivanhoe and Grand River avenues. The Tireman subdivision lies adjacent to and extends westerly from Grand River avenue, which runs from the central portion of the city in a northwesterly direction. An alley parallel to it runs through the subdivision a short distance west with lots between the alley and Grand River avenue fronting on the latter, while to the west of the alley lots in the subdivision front on avenues running directly east and west connecting with Grand River avenue at an angle. The names of two of these avenues were subsequently changed from Thornton and Tireman to Spokane and Ivanhoe.
On June 27, 1913, Joseph Tireman and wife, who owned and platted the subdivision, executed and on July 5th recorded in the office of the register of deeds of Wayne county a declaration of building restrictions thereon providing, so far as material here, as follows:
“All lots in the subdivision are to be used for residence purposes only except lots fronting on Grand River avenue on which solid brick mercantile büildings or residences or a combination of both may be erected at a cost of not less than three thousand (3,000) dollars and not less than two stories in height. * * *
“For the entire frontage on Thornton (Spokane) ' avenue and Tireman place (Ivanhoe avenue) from alley parallel to and westerly of Grand River avenue to the westerly line of the subdivision, no building shall be built, erected or maintained nearer than 30 feet to the front or street line of said premises. * * * No buildings for mercantile or residence purposes shall be erected nearer than twenty feet to the street line of Maplewood avenue, Thornton (Spokane) avenue or Tireman place (Ivanhoe avenue). * * * Thorn ton (Spokane) avenue and Tireman place (Ivanhoe avenue), between Grand River and Beechwood avenues, single residence only, not less than two (2) stories high, costing not less than three thousand (3,000) dollars.”
The fact that it was planned to be a strictly residential district with rigid building restrictions was advertised and emphasized as an inducement to purchase. A prospectus used in the sale of lots describing the subdivision in attractive terms pointed out that those restrictions, which would result in freedom from “all objectionable city features,” had been put of record, calling attention to a complete copy of the restrictions on the opposite page of the prospectus.
When this suit was commenced the great majority of lots on Ivanhoe and Spokane avenues were occupied with costly residences on both sides, with but a few double houses or family flats in the second and third blocks to the west of Grand River avenue where they were permitted under the restrictions. In the first block next to Grand River avenue only single, two-story dwellings were built on the lots facing those streets. On Ivanhoe avenue there were in the first block approximately 42 expensive residences of an average value of $25,000 or $30,000 and running up to $75,000. It was shown to be a particularly desirable residence district and Ivanhoe was said to be “the best street out Grand River from the Boulevard north as far as you want to go. * * * the most highly restricted street, the most valuable street.” The trial judge after viewing the premises found “the streets in this subdivision, as well as others in the immediate vicinity, of a high class residence character,” and that Grand River avenue was a busy thoroughfare, “fast becoming a business street.”
On August 25, 1919, Mrs. Tireman (whose husband had died) sold to George W. Rudell on contract certain descriptions in this subdivision, amongst which were lots on block one facing' Grand River avenue, including the site in question, which is a corner lot fronting 50 feet on Grand River avenue and extending westerly that width to the alley with Ivanhoe avenue as a side street on its north. This contract provided:
“The above mentioned premises are conveyed subject to building restrictions recorded in the register’s office, Wayne county, Michigan, in liber 914, page 304 of deeds, with the exception that each dwelling erected'' is to be constructed of solid brick, brick veneer, or stucco, with slate or tile roof and to cost not less than five thousand ($5,000.00) dollars.”
On September 10, 1920, Rudell, with the consent of Mrs. Tireman, sold and assigned all his remaining interest in this contract, which yet included the site in question, to defendants Hamburger who on their part obligated themselves over their signatures as follows:
“And the said Max Hamburger and Charles Hamburger, in consideration of the premises hereby assume and agree to carry out all parts of said contract (not already performed), provided in said contract to be performed by the party of the second part thereto.”
Early in 1921 (exact date is left blank in printed record) the Hamburgers entered into a land contract with the defendant Standard Oil Company to sell it this site for $24,000 with a payment of $500 down, the latter agreeing as soon as construction could be commenced in the spring to break ground and erect as rapidly as possible a described brick filling station on the premises, and, if all went well in the matter of restrictions, to complete the purchase of said real estate on or before August 1, 1921. The contract is abundant in details, but the following excerpt from its recitals indicates the nature of the project:
“It is understood and agreed that the party of the second part desires to purchase the above described land for the purpose of erecting and conducting a one story oil and gasoline filling station for the supply of automobiles and other gasoline driven vehicles, and desires to erect and operate on said land said one story station together with the usual and necessary driveways, and whereas the said real estate is subject to a building restriction providing that lots fronting on Grand River avenue shall be improved by a solid brick mercantile building of two stories in height and cost not less than three thousand dollars ($3,000) and that no building shall be built nearer than twenty (20) feet to the line of said Ivanhoe avenue, and that the parties of the second part are of the opinion that said premises can be used by the party of the second part for the erection and operation of such a gasoline filling station and to give the party of the second part an opportunity to test said question, it is hereby agreed as follows:” * * *
Plaintiffs apparently did not realize any too soon that in some sections eternal vigilance is the price of a building restriction as defendants make the point that the side walls of the filling station were up half way or more when this suit was begun, although the bill was filed and summons issued March 31, 1921. The trial court in its decree refused to enjoin erection of the proposed building, but restricted its extension beyond 20 feet from the curb line of Ivanhoe avenue, including the so-called “canopy,” or portico formed by its projecting roof supported on corner piers.
From this plaintiffs appeal, claiming the erection of such structure would be a violation of the building restrictions on that portion of the subdivision in the particulars that the proposed gasoline filling station is not a “mercantile building,” is not to be two stories in height, nor to front on Grand River avenue, the canopy or open extension of the roof is an integral part of the building and cannot be separated from it, the oil pumps at the edge of the canopy will be a part of the fixtures of the building, and the proposed cement driveway passing under and outside the canopy covering approximately ¾ of the 20 feet restricted area is to be so constructed in connection with the building as to be a permanent part and parcel of it for all intents and purposes.
The defendants contend that the restrictions have become inoperative upon this site by reason of a re-subdivision of the tract in 1914; that plaintiffs have violated the restrictions by building within less than 80 feet of the building line on Ivanhoe and Spokane avenues; that the construction of a one-story building instead of a two-story would not injure plaintiffs, but as contemplated would make that corner more attractive; that the proposed building is strictly within the requirements of the restrictions to a “mercantile building” and to be used for legitimate mercantile purposes only, and the concrete driveway objected to is not prohibited by the restrictions but will leave the property much cleaner and more attractive than in its natural condition.
No claim is or can be made that defendants did not have full notice of all restrictions upon this property and all existing conditions in and near that subdivision. Defendants’ claim of an abandonment of the restrictions is based on a change of the alley from where first located a short distance further east and nearer Grand River avenue, and a re-adjustment of the affected lots without any other alteration of alleys, streets or lots as previously platted or change in the recorded restrictions placed upon the subdivision. Furthermore, in 1919, when Mrs. Tireman, who lived upon Ivanhoe avenue and was familiar with then existing conditions, sold this property to Rudell she took the precaution to reimpose in the contract the restrictions upon the property sold him, and when he assigned the contract to defendants Hamburger they agreed in writing to carry out - all parts of that contract which were to be performed by Rudell. We have no hesitation in concluding that the site in ques tion is subject to the restrictions of record and that this issue should be tested by the legal rights of the parties under them.
Gasoline and oil are well known, commodities bought and, sold in the usual course of business at wholesale and retail, either exclusively or in connection with other merchandizing. The trial court rightly held that the owner is not prohibited by the restrictions from erecting upon these premises a solid brick mercantile building for that purpose and there engaging in such business. The restrictions, however, in regard to such buildings located upon lots fronting Grand River avenue provide that they “may be erected at a cost of not less than $3,000 and not less than two stories in height.” Defendants’ contention that the building as planned will look better one story than two stories high does not entitle them to violate that restriction against plaintiffs’ appeal to the courts for its enforcement. We find nothing in the restrictions prohibiting cement driveways on the property where-ever the owner thinks best. Restriction as to a 20-foot street line on Xvanhoe avenue is in effect reiterated in Mrs. Tireman’s contract of sale assigned to defendants Hamburger. No portion of this building or its appurtenances can be extended beyond the prescribed 20-foot building line on that avenue.
This court has so often and recently been called upon to review the authorities on the subject of building restrictions that it would be superfluous to discuss them here. The decree of the lower court will be modified to restrain defendants from erecting upon said site other than a two-story building as specified in the restrictions, and, so modified, will stand affirmed, without costs to either party in this court.
Fellows, C. J., and Wibst, Clark, Sharpe, and Moore, JJ., concurred. Bird, J., did not sit.
The late Justice Stone took no part in this decision. | [
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] |
Fellows, C. J.
This bill is filed to enforce a lien for materials furnished by the plaintiff to defendant Wallace Leslie, owner of the premises, which material was used by him in the erection of a dwelling house thereon. Defendant Leslie with other parties had built two! other houses but in the construction of this house he alone was interested. Defendants and appellants Ypsilanti Building & Loan Association and Marian Sanderson are mortgagees subordinate to the liens. The other defendants are lienors. Appellants appeal from that portion of the decree which awards relief to plaintiff and to defendant Shaefer Hardware Company, the other liens not being questioned.
When the managing officer of plaintiff was preparing to file the claim of lien he called on the bookkeeper for the figures. The bookkeeper gave him the amount of Mr. Leslie’s total indebtedness, $3,130.23, and not the amount due for material which went into the building, $2,126.41. The affidavit filed stated the first amount and the second amount herein stated was the amount found by the court. Upon the trial the officer frankly admitted the mistake and produced the tickets in court showing the actual amount of material which went into the building, made no claim for anything beyond that, and established the lien at the amount found by the court. It is insisted on behalf of appellants that the statement of this excessive amount was not a compliance with the statute (3 Comp. Laws 1915, § 14800) requiring “a just and true statement or account of the demand due him,” and for this reason the lien should fail. This provision has been before this court on numerous occasions, and we have on occasion held that the lien must fail where the excess was less than the amount here involved. But we have uniformly held that where the mistake is not made in bad faith but there is an honest mistake of fact made in the honest belief of its correctness, the lien will not be lost by reason of the excessive claim. Gibbs v. Hanchette, 90 Mich. 657; Lamont v. LaFevre, 96 Mich. 175; McMonegal v. Wilson, 103 Mich. 264; Scheibner v. Cohnen, 108 Mich. 165; Hulburt v. Just, 126 Mich. 337; Knowlton v. Gibbons, 210 Mich. 547. The trial judge who heard and saw the witnesses found that there was an honest mistake of fact and no bad faith on the part of plaintiff in making the claim. With this finding we agree and sustain the lien against this objection.
It is also urged that the last item of plaintiff’s bill was furnished a considerable time after the furnishing of the great bulk of the material, and it seems to be claimed that this was not furnished in good faith. If we were satisfied that the furnishing of this material was not in good faith, for use in the building, but was made to circumvent the limitation of the statute another question would be presented. But we are not so satisfied. The lumber was ordered for a coal bin in the basement ©f the house' and was delivered on the premises and Mr. Leslie signed the ticket for it. In Smalley v. Gearing, 121 Mich. 190, it was said:
“The verified statement or account must be filed within 60 days from the date on which the last of the materials shall have been furnished. We think the meaning of the statute is that the 60 days begins to run from the date when the last of the materials shall have been furnished to the owner, or delivered at the building.”
And in the recent case of Sandusky Grain Co. v. Condensed Milk Co., 214 Mich. 306, 325, we pointed out that material was needed from time to time as the building progressed and that rarely was the material all assembled before the work began, that requisitions are made as material is needed, that such requisitions do not make new contracts, and sustained the liens as against the objection that they were not seasonably filed. Plaintiff’s lien in the instant case was filed within the time fixed by the statute and is sustained.
The amount of the claim of the Shaefer Hardware Company set up in the affidavit was $460.88. The amount found by the court was $197.04. Mr. Shaefer went to his attorney’s office to consult him about the matter. His attorney asked him the amount of his claim. He called up the bookkeeper and was given the amount inserted in the affidavit. The trial judge found, and we agree with him, that the mistake was an honest one. What we have already said disposes of this claim.
The decree will be affirmed. Appellees will recover single costs of this court.
Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
effect of filing excessive mechanics’ lien, see note in 29 L. R. A. (N. S.) 305. | [
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] |
Wiest, J.
This suit involves the power of the Michigan public utilities commission to order a steam railroad company to bear one-half the expense of renewing and maintaining crossing frogs where its line is crossed in a public street by the lines of a street railway company. The steam railroad track was constructed across the street, at grade, in 1895, and soon thereafter the street railway company at its own expense, and without any public sanction, installed in the street a physical crossing of the steam railroad track and has since maintained the same. The . crossing frogs needing renewal, upon application of the defendant street railway company the commission assumed to have authority in the premises and ordered the crossing frogs to be renewed and maintained at the expense of both companies. Thereupon the bill herein was filed to set aside such order. The circuit judge found the commission had power in the premises and refused to set the order aside and by decree added to the order the command:
“That the said Pere Marquette Railway Company and the said Detroit United Railway shall immediately proceed to make, or cause to be made the necessary repairs to said crossings.”
The suit is in this court on the appeal of plaintiff.
It is stipulated by the attorneys:
“That the only questions at issue in this case concern the actual physical crossing of the tracks of the Detroit United Railway and the Pere Marquette Railway Company, the repair and maintenance of the same as between the two companies, and the validity of the order of the Michigan public utilities commission with reference thereto, dated August 6, 1920. The maintenance of such crossing protection as watchman, gates or derailing system is not involved.”
Counsel for plaintiff contend:
“That by the terms of section 3 of Act No. 171 of the Public Acts of 1893, the Detroit United Railway is:
“(a) Either required to install and maintain the crossings at its sole expense; or
“(b) Said act nowhere authorizes the Michigan public utilities commission to determine who shall bear the cost either of the installation or maintenance of the crossing frogs as between the junior and the senior road at a crossing constructed subsequent to the passage of the act, or to apportion it between them, and the commission was without statutory authority to make the order complained of in this case; and
“(c) In the absence of statutory authority the junior road at the crossing, in this case the Detroit United Railway, is required by common law to install and maintain the crossings at its expense.”
The decision must turn upon whether the statute confers upon the commission the power to apportion the expense of installing and maintaining new frogs at the crossings. If such power is not to be found in the statute then the order cannot be sustained for the power is not inherent in the commission and in the absence of a statute authorizing an apportionment of the expense the duty of installing and maintaining the physical crossing falls upon the street railway company, as we shall later point out.
Counsel for defendant street railway company, and. the attorney general, in behalf of the defendant commission, claim that Act No. 171, Pub. Acts 1893 (2 Comp. Laws 1915, §§ 8365-8371), confers such authority, and call attention to sections one and three of that act.
Section 1 provides:
“It shall hereafter be unlawful for any railroad company to construct its tracks across the tracks of any street railroad or for any street railroad company, whether operated by horses, cable, electricity or other motive power, to construct its tracks across the tracks of any railroad company or across the tracks of any other street railroad company until the place where and the manner in which such crossing shall be made shall have been approved by the commissioner (now public utilities commission) of railroads.”
Section 3 provides:
“Such crossings shall, in all cases where the commissioner of railroads deems it reasonably practicable, be made otherwise than at grade; and in accordance with plans to be approved by said commissioner; and when made at grade said commissioner shall prescribe the safeguards which shall be provided by the company desiring to make such crossing, to prevent accidents thereat.”
Section 5 provides:
“The commissioner of railroads shall, as soon as possible after the passage of this act, éxamine the crossings of the tracks of railroads and street railroads then existing, and order such changes made in the manner of such crossings, or such safeguards for protection against accidents to be provided thereat, as in his judgment ought to be so made or provided; and shall apportion any expense thereto between the companies affected as he may deem just and reasonable.”
This last section in express terms applies only to crossings existing at the time of the enactment of the law in 1893. It does show, however, that the legislature had in mind the rule of law imposing the expense of physical crossings and their maintenance upon street railway companies where their tracks cross the line of an existing steam railroad in the public streets, and a recognition of the necessity of giving the commissioner express authority to apportion the expense of such changes as he might order in existing crossings.
This brings us to the consideration of section one of the act and to the language, “and the manner in which such crossings shall be made.”
The attorney general says in his brief:
“It is true that said Act No. 171, Pub. Acts 1893, is the only act which directly authorizes any control by the defendant commission over the physical crossing of street railway lines and steam lines, but it will be our claim that this act is broad enough in its terms and should be construed to give the commission the authority claimed for it.”
He contends that the words “and in the manner in which such crossing shall be made,” should not be limited to mean the form, way or mode of crossing, but should be construed, under the provisions and purposes of the act, to include as well an apportionment of the expense thereof. The meaning of a word employed in a statute must be determined from the context and resort, if necessary, to the lexicon.
The Century Dictionary defines the word “manner” to mean:
“The way in which an action is performed; the method of doing anything; mode of proceeding in any case or situation; mode; way; method.”
It is clear from the context that the word “manner” as employed in the statute has reference to the way, method or mode of installing or repairing a physical crossing. But this does not reach to an apportionment of the expense contrary 'to common law. We must conclude from a consideration of all the provisions of the act, that the legislature, either purposely or inadvertently, left the matter of expense of installing and maintaining all subsequent crossings to rest upon the company for whose benefit the crossing is made and in accordance with the common law.
The learned circuit judge was of the opinion that section 44 of Act No. 300, Pub. Acts 1909 (2 Comp. Laws 1915, § 8152), has a significant bearing upon the question involved.
That act provides:
“The police powers of the State over railroads, street railways, interurban railways and suburban street railways, whether operated by steam, electricity or other motive power, organized or doing business in this State, shall be and the same are hereby vested in the railroad commission, and it is hereby made the duty of said railroad commission to exercise the same in accordance with the requirements of the law.”
The circuit judge reached the conclusion that the defendant commission, as the successor of the railroad commission, has plenary authority to require the plaintiff company to cause to be repaired and placed in proper condition any part of its track, or track structure, that is defective, and also to compel the use of proper methods of protection at all crossings, including crossings with street railway and interurban lines.
It may be conceded that under the police power and for the protection of the traveling public the commission is vested with power to order both companies to repair the crossing and to keep the same in repair, but this does not at all touch the question here. If both companies are directed to make the necessary repairs and the street railway company does not make them and the steam railroad company does, then under the law the steam railroad company may sue the street railway company and recover the cost. Under the order of the commission such right of recovery is cut off and that is the reason the question is here.
The order apportioning the expense, reverses the well-established common-law rule, deprives plaintiff of the right, if it makes the repairs, to sue defendant company and recover the expense thereof, and places a burden upon plaintiff justified by no statute and contrary to its common-law rights. When plaintiff crossed the public street with its railroad track it assumed the duty to keep the crossing so made by it in reasonably safe condition and repair, with reference both to its own purposes and for ordinary travel upon the highway. 3 Elliott on Railroads (3d Ed.), § 1580.
This duty was not enlarged by reason of the street railway crossing its track, so as to cast upon the steam railroad company any part of the expense of installing or keeping in repair the crossing frogs for the convenience of the street railway company.
“Where one railroad crosses the track of another, it is ordinarily the duty of the crossing company at whose instance and for whose benefit the crossing is made to defray the entire expense of its construction in the first instance, and subsequently to keep the crossing in repair, unless the crossing is above or below grade. * * * Each company, however, owes a duty to the public as a common carrier to see that a grade crossing is kept in good repair and either may and should make such repairs as are necessary; but the company making them may recover from the other company if as between the companies it was the duty of the latter to do so, either by reason of its being the company for whose benefit the crossing was made, or its agreement to do so, or it may recover the proportion due from the other company where such ex-, pense is imposed by statute upon the companies jointly.” 33 Cyc. pp. 250, 251; citing to the first part of the text Toledo, etc., R. Co. v. Detroit, etc., R. Co., 62 Mich. 564 (4 Am. St. Rep. 875).
But it is claimed safety appliances made necessary for the protection of the public in the use of the street may be ordered and the expense thereof apportioned between the companies. Detroit, etc., Ry. v. Commissioner of Railroads, 127 Mich 219 (62 L. R. A. 149). The authority of the commissioner of railroads in that case was based upon section 5 of the act of 1893, above referred to, and in the opinion it is stated the crossing existed at the time of the enactment of the law. In the case at bar the stipulation as to the issues eliminates crossing protection such as watchman, gates and derailing devices.
The right to use the public street gave defendant company the right to cross plaintiff’s railroad with its tracks, without compensation, but such right could not then, or later, operate as an occasion for casting upon plaintiff a part of the expense of installing or maintaining the necessary crossing frogs.
The rule is well stated in 25 R. C. L. p. 1170:
“Where a street railway has the right to cross a commercial railroad without compensation to the railroad the street railway must construct the crossing at its own expense,” and it is obliged to put in the safest and best crossing in common use at the time. As the continuance of the crossing is as much for the benefit of the street railway as was its construction in the first instance, the cost of maintenance must be borne wholly by the street railway company; but it is the duty of the steam railroad company to supply the safety gates, or similar appliances, if necessary.”
This being the law, in the absence of a statute to the contrary, it will not do to say the commission, under the police power, may nullify such rule of law at will. The police power may be invoked to make the crossing safe but this in no sense involves the power to apportion the expense; the power to safeguard the public is ample without invading plaintiff’s rights.
In Central Passenger R. Co. v. Philadelphia, etc., R. Co., 95 Md. 428 (52 Atl. 752), all the questions here involved, except the construction, of our statute, were raised and considered upon facts practically on all fours with the ease at bar. The case is so well reasoned and supported by authority that we adopt the following:
“The common law doctrine that whatever structures are necessary for the crossing of an old way by a new way must be erected and maintained at the expense of the party under whose authority and direction the crossing is made is applicable to railways and' railroads which intersect each other upon the public streets of a city, unless that doctrine be modified by statute. Outside of statutory provisions — and there are none such in this State — there is neither precedent nor authority for requiring the owner of the subsisting way to contribute any part of the expense rendered necessary to enable the owner of the new way to cross the old way. The crossing of the old way is made for the benefit of the second comer, and not for the benefit of the owner of the old way; and even though both occupants claim under licenses from the same municipality common justice dictates that the one for whose exclusive benefit the crossing is made should defray the expense of constructing it. And as the continuance of the crossing is as much for his benefit as was the construction of it in the first instance, it is equally obvious that he should maintain it wholly at his own cost. That is all the decree appealed against determined, and that is all the steam railroad insists on.”
And the same rule exists in Canada. 5 Can. Ry. Cases, 175. See, also, West Jersey & Seashore R. Co. v. Atlantic City & Suburban Traction Co., 65 N. J. Eq. 613, 623 (56 Atl. 890); Chicago & Calumet Terminal Co. v. Whiting, etc., R. Co., 139 Ind. 297 (38 N. E. 604, 26 L. R. A. 337, 47 Am. St. Rep. 264).
It must be held that the commission had no power to apportion the expense of installing and maintaining the crossing frogs.
The decree entered in the circuit court and the order of the Michigan public utilities commission, so far as the same require the plaintiff to bear a part of the expense of installing and maintaining crossing frogs at the crossing in question, are reversed and vacated, with costs to plaintiff against the defendant Detroit United Railway.
The order, as one requiring new crossing frogs to be installed, will stand affirmed.
Clark, Bird, Sharpe, and Steere, JJ., concurred with WlEST, J.
right of railroad company to compensation for the crossing of its track where it intersects a street or highway by an electric road, see notes in 13 L. R. A. (N. S.) 916; L. R. A. 1915D, 843. | [
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] |
Wiest, J.
French and Mulholland, as copartners, were engaged in conducting an amusement park, and desiring to sever the relation by one purchasing the interest of the other, a give or take proposition was made by Mr. Mulholland and accepted by Mr. French.
Mr. French paid the agreed price and claimed he later discovered that Mr. Mulholland, while manager, had not accounted for all the profits, and filed the bill herein to have an accounting relative to specified items he claims were received and retained by defendant and for a money decree for such amount as might be found due him. It is alleged in the bill:
“That at and before the time of the dissolution of the said partnership the said defendant represented to this plaintiff, that he, the said defendant, had accounted for all of the moneys of the said partnership and partnership business which had come to his hands, and has paid to this plaintiff his full share thereof; that plaintiff relied upon such representations of said defendant and believed the same to be true and was deceived thereby; that since the dissolution of the said partnership plaintiff has ascertained that said representations so made by the said defendant to plaintiff were not in fact true and that said defendant had not accounted to plaintiff for all of the moneys of the said partnership and partnership business which had come to the hands of defendant, and had not paid to plaintiff his full share thereof; and said defendant had not accounted to plaintiff for large sums of money belonging to said partnership business, which partnership moneys had come to the said defendant during the season of 1918, and that the said defendant had not charged himself with large sums of money which he had taken out of said partnership business for his own individual use and benefit during the said season of 1918. That at the time of the purchase by this plaintiff of the said defendant’s interest in said partnership business, and at the time of the dissolution of the said partnership, the said defendant made false representations to this plaintiff as to the amount due to said partnership on open accounts, and which accounts this plaintiff accepted from defendant in lieu of .money. That as nearly as this plaintiff can now estimate the same, the said defendant has failed to account to plaintiff for upwards of $2,000 of the partnership moneys coming to defendant’s hands during the season of 1918, said failure and default of said defendant being herein specifically stated and set forth.” * * *
Then follows a statement of the items claimed to be involved. Defendant denied the charges made against him. Plaintiff elected not to rescind. At the close of the plaintiff’s proofs the trial judge dismissed the bill, holding plaintiff’s remedy, if any, lay in an action at law.
Has plaintiff an adequate remedy at law? The acceptance of the give or take proposition by plaintiff put an end to the partnership relation, and in the absence of fraud or deceit operated as an adjustment and settlement of their partnership affairs. Plaintiff' alleges fraud and deceit and seeks to go back of the adjustment and settlement and recover sums received for the partnership by defendant and kept from the knowledge of plaintiff at the time of the settlement. Plaintiff, by affirming the sale to him, has affirmed the dissolution of the copartnership and the settlement, except as he may, if he has been defrauded, have a remedy for the fraud and deceit practiced upon him. If plaintiff has suffered loss in adjusting the partnership relation with defendant, through fraud or deceit of defendant, his remedy does not lie in a partnership accounting, but in an action planted upon such fraud and deceit. The allegations in the bill charge fraud and deceit on the part of the defendant and that the settlement of the partnership affairs was brought about thereby. Plaintiff insists he has a right to maintain this suit and go into the specific matters alleged in the bill.
Daniel v. Gillespie, 65 W. Va. 366 (64 S. E. 254), is cited by plaintiff as authority in support of his right to maintain this suit. The plaintiff in that case filed a bill to set aside his purchase of his copartner’s interest in a store, and to cancel his negotiable promissory notes given therefor and to settle and wind up the partnership business. Clearly in that case matters of equitable cognizance appeared. Plaintiff in this case had a right to impeach the settlement with his copartner, for the fraud and deceit alleged, if practiced upon him, but such is not the remedy he seeks. The allegations in the bill state an action for fraud and deceit in making a settlement of the part nership affairs and plaintiff elected to have such settlement stand.
In Crockett v. Burleson, 60 W. Va. 252 (54 S. E. 341, 6 L. R. A. [N. S.] 263), a case quite similar to the one at bar, the plaintiff, without rescinding, brought suit to recover damages for deceit practiced upon him by defendant in their settlement of their partnership affairs. The court stated:
‘‘The single question presented here is: Can this action at law for the alleged deceit be maintained by the plaintiff against the defendant, his former partner? * * * It is contended that this action for alleged deceit is not cognizable at law, because the partnership relation, existed between plaintiff and defendant when the alleged deceit was practiced, and because the alleged deceit related to the state of the indebtedness owing to the firm, and because this action necessarily involves a re-opening and re-settlement of the partnership accounts and business. * * * In the case at bar, the partnership has been finally settled and dissolved. The partnership relation no longer exists. The wrong complained of does not involve in this action a re-opening or re-adjustment of the partnership business or accounts. The contract of settlement and dissolution stands without rescission. The ground of action is in no way connected with the state of the partnership accounts or business, except that the deceit is alleged to have been practiced in relation to the state of the indebtedness owing to the firm before the dissolution.”
It was held that the action at law could be maintained.
In the instant case the plaintiff in his bill does not ask for a re-opening or re-adjustment of the partnership business or accounts; he does specify certain accounts upon which he desires judicial determination as between himself and the defendant. We think the question here involved was answered in Farnsworth v. Whitney, 74 Me. 370:
“When the two members of which a firm is com posed, settle their partnership affairs and dissolve, and one of them takes an assignment of the other’s-interest in the partnership property, paying therefor a sum agreed upon by them, and assumes the payment of the partnership debts, the effect of the arrangement is to extinguish the assignor’s indebtedness to the firm. Such an arrangement implies that the' assignor is to retain whatever he has already received from the firm, in addition to the consideration mentioned in the assignment. It is in effect an agreement that the sum paid is a balance due him after deducting what he has already received. No other rational interpretation can be put upon such an arrangement. It is impossible to believe that the one. would pay or the other receive the sum agreed upon, unless all existing claims between them were to be thereby adjusted and settled. * * * If one of the parties is defrauded in the settlement (of which the want of proper entries may be strong evidence), the law furnishes him with two remedies; he may rescind the settlement, or bring an action on the case for the deceit. If he elects-to rescind, he must do so promptly, upon discovery of the fraud, and restore whatever he has received under the settlement. If this is done, the parties are restored to their former rights, and made subject to their former liabilities. If, in consequence of the lapse of time, or a change of circumstances, a rescission has become impossible or undesirable, the injured party may still obtain ample redress by resort to an action on the case for deceit.”
Plaintiff has an adequate remedy at law, and the learned circuit judge was right in holding that the equity court had no jurisdiction.
The decree is affirmed, but the case is remanded in order to give plaintiff an opportunity to move that the suit be transferred to the law side of the court under the provisions of section 12351, 3 Comp. Laws 1915. Defendant will recover costs.
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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Sharpe, J.
This suit is brought by the plaintiffs, who are taxpayers of the county of Wayne, to test the right or power of the county to establish and maintain a tract index and to make and furnish abstracts of title to lands in that county. On September 18, 1913, a petition was presented to the board of county auditors by certain real estate dealers and brokers, requesting that a complete abstracter’s tract index of the lands in the county be compiled and placed in the office of the register of deeds for use of the county officials and the general public. It was represented in the petition that there were but two corporations in the county engaged in the furnishing of .abstracts of title and that the demands therefor were so great that much delay and consequent inconvenience to the public resulted therefrom. This petition was presented by the county auditors, to the board of supervisors at its next session. The matter was referred to a committee of the board, who reported, recommending that the county auditors begin at once “the compiling and installing of an abstracter’s tract index or geographical index in the register of deeds’ office, with full supervision of the plans and work for said index.” This report was adopted and an appropriation of $35,000 made to begin such work. Reports of progress were made to the supervisors from time to time and additional appropriations made. At the hearing in the trial court it appeared that about $400,000 had been expended in the furtherance of the work.
On October 28, 1919, the board of supervisors adopted an ordinance entitled:
“An ordinance to establish a department of the county government of the county of Wayne, to be known as the Wayne county tract index department, to provide a penalty for a violation of- the provisions thereof, and to repeal all ordinances or parts of ordinances in conflict herewith.”
This ordinance contains 15 sections and provides with somewhat minute details for the accomplishment of the purpose outlined in its title. The purpose of the index was stated in section 7 to be:
“It being the intent and purpose of this ordinance to have such Tract index’ contain a full and complete history of the title to every piece, parcel, tract or subdivision of land lying and being within the county of Wayne, and to continue and perpetuate such history.”
Section 8 makes it the duty of the superintendent of such department to furnish any person upon request an abstract of title to any land in the county and to attach thereto a certificate to the effect that every instrument recorded or filed in the office of the register of deeds affecting the title to such land has been entered therein. Section 9 provides that the superintendent, under the regulation of the board of county auditors, shall fix the price to be paid for all abstracts furnished by the department and may also prescribe a schedule of fees for searches and certificates where no complete abstract is made, all moneys received by him to be paid by him, daily, into the county treasury.
Soon after the adoption of such ordinance, and on February 25, 1920, the plaintiffs filed the bill of complaint herein, praying that the board of supervisors, the board of county auditors, and the county treasurer, who are made defendants, be restrained from continuing such work and from appropriating or paying out any of the moneys of the county in furtherance thereof. The defendants, answering, while admitting in substance the averments in the bill as to the work done, allege that the purpose of the action of the board of supervisors in- establishing the tract index was “based upon considerations arising from the convenience and necessities of the public” in quickly ascertaining the title to lands in the county and “the utility of such index in and of itself to the people of the county of Wayne,” and that the adoption of the ordinance, with the provisions therein contained relative to furnishing abstracts of title,—
“was wholly based upon practical considerations arising from existing conditions, there being but two (2) sources, of procuring abstracts in the county, the long wait to which all persons were subjected after giving an order, before it was filled, and the large cost and expense to every person of procuring such service from one of such abstract companies,”
and that—
“The furnishing of abstracts is but the furnishing of certified copies of excerpts from the public records, a service which has been performed by public officers, from time immemorial.”
A hearing was had at which much testimony was; taken and a decree made by the trial court in which, the power of the board of supervisors to install the. tract index as prepared was upheld but the authority to provide for the furnishing of abstracts was denied-From this decree all parties appeal.
Tract Index. In the early years of government in this country, but little attention was. paid to real estate titles. The grantee received from the grantor a- warranty deed of the premises conveyed. This was usually accompanied by the muniments of title held by the grantor, consisting of the original conveyances in the chain of title and discharges of any mortgages, liens or levies which had been placed thereon. While the law in the several States and Territories early provided for the recording of all matters affecting the title, such records were but little consulted. The transfers were infrequent and in most cases possession had been held for a sufficient length of time to ripen into a title. But, as the country developed and commercial activity increased, the transfers be came more frequent, and with the increase in values conflicting .claims of title became not infrequent and the rights under them were in many cases dependent upon an accumulation of evidences of title, which required a careful examination and a considerable degree of skill on the, part of the examiner to arrange and classify as well as to interpret and adjust. It became no longer practical, in most cases, to determine the nature of a title by an inspection of the original documents and recourse must perforce be had to the public records, which were given the same probative force and effect as the original documents copied therein.
The necessity of providing a means by which an effective search of such records might be had gave rise to the enactment of laws in 1841, and, later, in 1846, the former being permissive and the latter .mandatory. They read as follows':
Act No. 79, Laws of 1841 (3 Comp. Laws 1915, §§ 11789, 11790):
“Section 1. Be it enacted by the senate and house of representatives of the State of Michigan, That the county commissioners of the respective counties of this State be, and they are hereby authorized, if, in the opinion of the commissioners, they shall deem it necessary, to cause the registers of their respective counties to prepare a general index to all books in their offices, used for the. purpose of recording deeds, mortgages, and other instruments, in order that the records containing the title of lands may the more easily be preserved, and a search of said records, to ascertain such title facilitated; and the said registers shall receive for their compensation such sum as the county commissioners may deem just and right.
“Section 2. That no compensation shall be allowed for indexing in the general index, deeds, mortgages, and other instruments, that shall be left for record, after the general index books shall be furnished to the registers of the respective counties, or when said books may have been already furnished, and the registers are hereby required, without charge, to index all such deeds, mortgages and other instruments, in said general index.”
Section 28 of chapter 65, Revised Statutes of 1846 (3 Comp. Laws 1915, § 11720):
“Every register of deeds shall also keep, a proper general index to each of the sets of books, in which he shall enter, alphabetically, the name of every party to each and every instrument recorded by him, with & reference to the book and page where the same is recorded.” * * * .
The alphabetical index proved serviceable. It was referred to in Edwards v. McKernan, 55 Mich. 520 (decided in 1885), as affording “ready means of information to purchasers investigating the title to land.” But, as the records increased in volume, this index proved inadequate to satisfy the demand for accurate information, and in many of the counties the index provided for in the law of 1841 was installed and has since been maintained. It is spoken of as a tract index, geographical index, sectional index, and abstract book. The only substantial difference between it and the alphabetical index is that in the former the documents as recorded are minuted in columns on pages, the caption of which contains the particular description of the land conveyed, and in the latter under the surname of the grantor and grantee. While substantially the same facts appear in the alphabetical index, the greater convenience, for the purposes of search, of having the information listed in a record, each page of which is, devoted to a particular tract or section, is apparent. The importance of the tract index in the preparation of an abstract of title and its practical value when kept up by the county is thus stated by Mr. Warvelle:
“No perfect abstract can be compiled without the assistance of a carefully prepared tract index * * * and should the county records be supplemented with this indispensable adjunct, the searcher will have less difficulty and experience more satisfactory results.” Warvelle on Abstracts (4th Ed.), § 67.
The proofs show that the alphabetical, or grantor and grantee, index, as it is sometimes called, is of little assistance at the present time in the search of records in the county of Wayne. This county has now a population of about 1,250,000, and the valuation of its property, as fixed by the State board of equalization for the year 1919, was $1,589,800,000; more than 35 per cent, of the valuation of the entire State. The area of the county is 630 square miles, of which more than 78 are in the city of Detroit. There are in the entire county about 5,700 subdivisions which have been platted, consisting of upwards of 500,000 lots. There were 91,298 instruments recorded from December, 1918, to November, 1919. Mr. Burton, one of the plaintiffs, estimated that such transfers in the city of Detroit exceeded those in any other city in this country, with the possible exception of Chicago.
These figures clearly demonstrate the necessity of some means of determining titles other than that afforded by the alphabetical index. If the people of the county may not provide other means, it remains that they are at the mercy of those owning private indexes' to afford them the information necessary to complete a transfer of real estate.
Mindful of these considerations, let us now examine the act of 1841, under which the board of supervisors defends its action. This law has appeared in our statutes for 80 years and many counties, acting under. the power therein conferred, have maintained a “general index” similar in all essentials to that now being prepared in the county of Wayne. It is our duty to ascertain the meaning of and to give full force and effect to the statute. We must not overlook the pur pose of its enactment. The intention of the legislature, clearly expressed in the act, was to permit such an index to be prepared and maintained—
“in order that the records containing the title of lands may the more easily be preserved, and a search of said records, to ascertain such title facilitated.”
The tract index is designed to accomplish this purpose and a reading of the record clearly demonstrates the utility of the work in this respect. It is a “general index” to all books in the office used for the purpose of recording instruments relating to the title to real estate. Calling it a set of abstract books is but seeking to confuse the mind. The name has no significance. By it the purpose of the act is fulfilled in every particular. We can conceive of but two ways in which an index to the title to lands may be prepared. One of these is the alphabetical index provided for in the act of 1846, the other an index in which the instruments recorded shall be noted under a caption for each particular tract of land. If the act of 1841 does not authorize the preparation of a tract index, we can see no reason why the mandatory act of 1846 was enacted. Presumably, the legislature was aware that in many counties the tract index was not being maintained and in its wisdom it made provision that an alphabetical index must be kept up. It is urged that this act was passed in view of the conditions then existing, due to the transfer of the records from one office- to another. If we concede that such conditions impelled the legislature to act, we have no right to assume that a statute granting power in broad and general terms was intended to be limited in its application to the relief of such conditions. It is permissive only. It grants authority to the commissioners, now the boards of supervisors, to take action whenever, in their judgment, they shall deem it advisable to do so. If such action could have been taken immediately upon the act taking effect, as was. done in several counties, it may be taken at any time a board of supervisors so determines.
The owners of lands in Wayne county have expended large sums of money in recording the conveyances affecting their titles. While a statement of the fees paid therefor in any one year does, not appear in the record, if we assume an average of 75 cents (that usually charged for a short form warranty deed) for each document recorded in the year 1919, it amounts to more than $68,000. The purpose of this large expenditure is to secure safety for their muniments of title. The people of the county, through its representatives, the board of supervisors, now propose by means of this tract index to make these records available to those interested in ascertaining the condition of the title to any particular description. The cost of keeping it up will be comparatively trifling. A clerk, with the instrument before him, will in a few minutes enter the facts contained in it in the blank spaces provided therefor on the page of the index. Where a will, court order, contract or conveyance containing special provisions is recorded, more time will be required, but the charge for recording will more than compensate for this service and no hardship be imposed on a register of deeds if paid by the fees for recording instead of by a salary.
Counsel for plaintiffs insist that the law of 1841 was repealed by that of 1846. This act has been included in every compilation of the statutes since that time and appears in the Compiled Laws of 1915 as sections 11789 and 11790. As has been stated, a considerable number of counties have authorized and continued action thereunder. It may also be noted that Judge Cooley in his preface to the Compiled Laws of 1857 states, in effect, that this and other acts enacted prior to 1846 were included therein because not repealed by the Revised Statutes of 1846. We feel constrained to hold that the act of 1841, not having been expressly repealed and being in no way repugnant to the provision in the law of 1846 providing for an alphabetical index, is still in full force and effect, and that it confers the power now being exercised by the board of supervisors in preparing and maintaining the tract index.
Abstracts. The tract index, as prepared in Wayne county, under appropriate headings, gives the following information as to each conveyance under a caption in which the particular parcel of land is described: Name of grantor, name of grantee, kind of instrument, consideration, date of instrument, date of its record, liber and page on which recorded, whether or not there is a building restriction, with an additional column for remarks. Unless there be some special provision in the instrument recorded, a copy of such entry would in itself make a complete abstract of the document. We may take judicial notice that in many counties the abstracts prepared by private abstracted are made out on such a form and in the column for remarks all unusual provisions and omissions or defects in execution are inserted, the abstract being simply a copy or duplicate of the tract index page or pages. The writer of this opinion has seen abstracts which were but a photographic copy of such pages. In other counties, the abstracts consist of a series of pages in which the facts noted on the tract index are set out, thus forming a condensed history of the title to the land. There is nothing, however, which will appear upon such an abstract that is not copied from the records of the county. The tract index as prepared is a public record. A certified copy of any page or pages of it may be procured by paying therefor. Where it is incomplete, in not affording full information as to special provisions in the instruments recorded, a certified copy of such instruments may also be procured. The examiner of titles would, by procuring these, have the same information as is contained in the completed abstract, which the county proposes to furnish. For the convenience of the owners, and prospective purchasers of lands in the county, May not the board of supervisors, provide for furnishing the information desired as to these special matters? It is purely a matter of local concern. Neither the State as a whole nor any person other than a taxpayer of Wayne county has any interest in the matter. The county having lawfully expended a large sum in the preparation of the tract index, May it not provide for giving its people the benefit of such expenditure by furnishing them the information desired in the form proposed? We so conclude. The recording of documents and the preparation and keeping up- of the tract index were provided for as a service to the people. To meet the present demand, that service may now be extended to give the landowners of the county the full benefit and advantage of the moneys expended. In furnishing abstracts as proposed, the county will not be “engaging in a business” as that expression is used in commercial transactions. In that it will thereby serve the public it may be called a public utility, but the work proposed is merely the furnishing of certified copies of the public records in a form suitable and convenient for examination by those interested in them.
Counsel for the plaintiffs urge that Traverse City v. Railroad Commission, 202 Mich. 575, City of Kalamazoo v. Titus, 208 Mich. 252, and Clements v. McCabe, 210 Mich. 207, are controlling as to the right of the county to furnish abstracts. The two former involved the power of the cities to fix the rates for service of public utilities, and it was held that no such power had been delegated by the legislature in express terms. The latter, the zoning case, involved an exercise of police power by the city. Such power, independent of the Constitution, is lodged in the legislature. It was held, that a delegation thereof to the city must be specific in its terms and was not included in a constitutional provision conferring upon cities a greater degree of self-government nor in an act of the legislature, general in its terms, adopted pursuant thereto. In all three, the property rights of others were involved. The power sought to be- exercised was not of a local legislative or administrative character, but affected rights dependent upon legislative action and control. The distinction is apparent. The reasoning of this court in Andrews v. City of South Haven, 187 Mich. 294 (L. R. A. 1916A, 908, Ann. Cas. 1918B, 100), is more applicable. It was there held that under the power conferred on a board of public works of a city to construct, manage, supervise and control an electric lighting plant it might keep on hand a stock of electrical fixtures and accessories and sell the same to the citizens.
We are of the opinion that there is no legal impediment to prevent the county of- Wayne furnishing abstracts of title to the landowners of the county. The conclusion we have reached is but in accord with the trend of modern thought and judicial decision. When action is taken by a State or one of its municipal subdivisions, manifestly in the interest of its people as a whole, and the rights of individuals are not abridged thereby, and such action is not within the inhibition of some constitutional or statutory -provision, it should be upheld as a valid exercise of authority, though lacking in any positive grant of power to support it. One of the purposes of a government such as ours is to promote the public welfare. The power to act, in doing so, is not confined to the suppression of what is harm ful. It extends, to- providing appropriate facilities for making available to the public need all of the property and agencies, of the government, whether National, State or municipal.
Tract Index Department. Having concluded that the action of the board of supervisors, in causing the tract index to be compiled and in providing for the furnishing of abstracts of title, is warranted, May it continue such work under the plan provided therefor in the ordinance? We have heretofore referred to some of its provisions. It is set forth in full in the margin.
In considering the validity of this ordinance it must be borne in mind that the authority to compile the tract index rests on the power conferred by the act of 1841. Under it the boards of supervisors were empowered “to cause the registers of their respective counties” to prepare the index. When completed, it became the duty of the register to enter thereon all instruments thereafter recorded without charge. The present Constitution (Art. 8, § 3) provides for the election biennially of a register of deeds in each organized county, “whose duties and powers shall be prescribed by law.”
While under the general law the compensation of registers of deeds is in the way of prescribed fees, Act No. 381, Local Acts of 1879, provides for an annual salary to be fixed by the board of county auditors of the county of Wayne. -The fees prescribed are to be collected and turned into the county treasury. Section 8 of this act authorizes the county auditors to prescribe the number of deputies or clerks to be employed and to fix their compensation. These are, however, to be appointed by the register of deeds. The duties of the register as prescribed by law will be found in the general law relating to county officers (1 Comp. Laws 1915, § 2472 et seq.) and in the recording laws (3 Comp. Laws 1915, § 11711 et seq.). Section 7 of article 8 of the Constitution provides for a board of supervisors in each county, “with such powers as shall be prescribed by law.” Under section 8—
“The legislature may by general law confer upon the boards of supervisors of the several counties such powers of a local, legislative and administrative character, not inconsistent with the provisions of this Constitution, as it may deem proper.”
Under the authority thus conferred, the legislature enlarged the power of boards of supervisors by authorizing them
“to pass such laws, regulations and ordinances relating to purely county affairs as they may see fit, but which shall not be opposed to the general laws of this State.” * * * 1 Comp. Laws 1915, § 2274.
We feel constrained to hold that the ordinance in question was. not authorized by the enlarged power granted under this section. It empowers the board of county auditors and the superintendent therein provided for to perfom duties imposed on the register of deeds by the general law relating to that office. It, in effect, creates a new county office and is not a mere employment of the superintendent to perform duties which the board of supervisors have the power to provide for. The last section assumes to place the title to the tract index in the Wayne county tract index department. Clearly, the board of supervisors had no power to so provide. There is no express grant of the authority therein exercised ill the statute, and we are unable to conclude that such power is impliedly granted or is incidental to that which is expressly coinferred. In view of the length of this opinion and the fact that the provisions of the ordinance can be easily changed so as to make the duties of the superintendent those of the register of deeds or a deputy appointed by him, we refrain from discussing this question at greater length.
We have not overlooked the claim of the defendants that the plaintiffs as taxpayers of the county have no right to question the validity of the ordinance in this proceeding. Their counsel insist that—
“They are not aggrieved by the circumstance that abstracts are made and furnished in this manner. * * * This is a question which can only be raised by the proper public authorities.”
They rely on Miller v. Grandy, 13 Mich. 540; Steffes v. Moran, 68 Mich. 291; Sweet v. Smith, 153 Mich. 674; Home Telephone Co. v. Railroad Commission, 174 Mich. 219; and Board of Education v. Gilleland, 191 Mich. 276 (L. R. A. 1916E, 468), to support this claim. We think these cases may be distinguished and that the facts here presented are ruled by Curtenius v. Hoyt, 37 Mich. 583; Callam v. City of Saginaw, 50 Mich. 7; Putnam v. City of Grand Rapids, 58 Mich. 416; Savidge v. Village of Spring Lake, 112 Mich. 91, and Bates v. City of Hastings, 145 Mich. 574. In the Curtenius Case, Mr. Justice Graves, after reviewing the authorities, apparently in conflict, said:
“The conclusion reached is that ‘the decided preponderance of authority is in support of the right of the taxpayers to file bills on their own behalf in such cases.’ ”
In the Savidge Case, Mr. Justice Grant, speaking for the court, said:
“It is well settled in this State’ that a taxpayer in' the situation of the complainant is entitled to maintain a suit to restrain the illegal action of a municipality in the expenditure of money.”
The ordinance provides for the payment of salaries to the holder of an office created by it and deputies, assistants and clerks to be appointed by him. We must assume that plaintiffs- as taxpayers will be damaged thereby. .
The decree rendered will be modified to conform to-this opinion, and, as thus modified, affirmed. No costs will be allowed.
Steere, C. J., and Moore, Stone, Clark, and Bird,. JJ., concurred.
The late Justice Brooke took no part in this decision..
An ordinance to establish a department of the county government of the county of Wayne, to be known as the Wayne county tract index department, to provide a penalty for a violation of the provisions thereof, and to repeal all ordinances or parts of ordinances in conflict herewith.
It is hereby ordained by the board of supervisors for the county óf Wayne, State of Michigan:
Section 1. There is hereby established a department of the county government of the county of Wayne to bo known as the “Wayne) county tract index department.”
Section 2. The board of county auditors shall, as soon as may be after this ordinance takes effect, appoint a suitable person to act as superintendent of said department. Said superintendent shall hold office for a period of two years from and after the day of his appointment. And said superintendent shall, before entering upon the duties óf his office, file in the office of the board of county auditors, an official bond for the proper performance of the duties of his office and to account for all moneys coming to his hands by reason thereof, said bond to he in such sum and with such sureties as the board of county auditors shall direct and approve. Said superintendent may be removed at any time by the board of county auditors for cause, but not until he shall be given an opportunity to be heard in his defense.
Section 3. Said superintendent is hereby authorized to appoint an assistant superintendent and such other assistants, clerks and subordinates as may be deemed necessary and proper. Such assistant superintendent, when so appointed, shall hold office during the pleasure of the superintendent. And said superintendent may dismiss any assistant, clerk or employee of said department when he shall deem it advisable.
Section 4. The superintendent, assistant superintendent, clerks, assistants and other subordinates employed in said department shall receive such compensation as may be determined by the board of supervisors.
Section 5. It shall be the duty of the board of county auditors to provide offices, furniture, telephones, safes, or vaults, heat, light and all necessary books, blanks, files, stationery and other equipment and supplies for the use of said department.
Section 6. Said superintendent shall have the care and custody of all books, records, papers and.documents pertaining to said department, and it shall be his duty to securely keep the same; and no book, record, paper) or document shall be re moved from- the office or offices occupied by said department except upon the written consent of said superintendent; and any person or persons removing any book, record, paper or document from such office or offices without having first obtained such written consent, or who shall mark, mutilate, deface or destroy any such book, record, paper or document shall be deemed guilty of' a misdemeanor, and upon conviction shall be subject to a fine not exceeding the sum of one hundred dollars, or by imprisonment in the county jail not exceeding ninety days, or both such fine and imprisonment in the discretion of the court.
Section 7. It shall be the duty of said superintendent to keep in his office books to be known as the “tract index,” 'and to enter in such books an epitome of every deed, mortgage, agreement, release, discharge, attachment, lien, sale, lis pendens, or .other instrument or transaction of record in any manner affecting title to land lying within the county of Wayne, and which have heretofore been entered of record in any of the record offices of the city of Detroit or the county? of Wayne, or which appear of record in any of the courts in said county. And it shall also be the duty of such superintendent to enter in such tract index an epitome of the daily transactions in the various record offices hereinbefore mentioned. It being the intent and purpose of this ordinance to have such “tract index” contain a full and complete history of the title to every piece, parcel, tract or subdivision, of land lying and being within the county of Wayne, and to continue and perpetuate such history.
Section 8. Said superintendent is hereby authorized and empowered and it shall be his duty to furnish any person upon request, an abstract of title to any piece, parcel, tract or subdivision of land lying within the said county of Wayne. There shall be attached to each abstract so furnished a certificate to the effect that there has been entered therein every conveyance, encumbrance or other instrument recorded or filed in the office of the register of deeds for the county of Wayne and, State of Michigan affecting the title to the property covered by such abstract from the date of the commencement thereof to the date of the certificate thereof. The certificate .may b,e enlarged to cover such other matter mentioned in the preceding section, as the superintendent may in his discretion determine, subject to the approval of the board of county auditors.
Section 9. Said superintendent under such regulations and conditions as the board of county auditors may prescribe, shall fix the price to be paid for all abstracts furnished by said department, said price, so far as possible, to be determined according to the number of separate documents, instruments and proceedings appearing on said abstract. And he may also under such regulations and conditions prescribe a schedule of fees for searches and certificates, and for such other information as may be furnished by the books and records of said department. And said superintendent may, in any case where he deems it advisable, demand a fee in advance for any abstract of title furnished by said department.
Section 10. Said, superintendent is hereby given exclusive authority to determine the manner and method of preparing abstracts of title, and the order or arrangement of the various documents, instruments and proceedings appearing thereon. Provided, however, that each deed, mortgage, agreement, release, discharge, attachment, lien, sale, Us pendens, or other instrument appearing thereon shall be numbered separately and successively.
Section 11. Said superintendent shall keep an accurate account of all moneys received by him and shall make a daily report to the board of county auditors of all moneys received by him on the previous day. And shall daily pay to the county treasurer all moneys received by him, and take the receipt of said treasurer for the same. The books of account so kept by said superintendent [shall] be audited and inspected by the board of county auditors at least once every month or at any time deemed advisable by said board. And .all moneys paid by said superintendent to the county treasurer shall be credited to such fund or funds as may be designated by the board of supervisors.
Section 12. Said superintendent shall prepare and submit to the board of county auditors, an estimate of the expenses of said department for the ensuing year. He shall also make a true and accurate report to the board of supervisors of all moneys received by said department during the prior twelve months and give such other and further information as may be required by said board of supervisors.
Section 13. Said superintendent may make such reasonable rules and regulations with reference to the inspection and examination of the files and records of his office as shall be deemed necessary for the protection of said records and files, and he shall absolutely prohibit the use of pen and ink in making copies of notes of such records and files, except by the employees of said department. And he shall also furnish proper and reasonable facilities for the inspection and examination of the records and files in his office, and for making memoranda or transcripts therefrom during the usual business hours, to all persons Raving occasion to make examination of them for any lawful purpose.
Section 14. That the tract index or abstract books heretofore prepared under resolution of the board of supervisors of said county, adopted at a session of said board held in the year 1913, shall become the property of the Wayne county tract index department, and shall at all times remain the permanent records of said department.
Section 15. All ordinances or parts of ordinances in conflict herewith are hereby repealed. | [
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] |
Stone, J.
The defendant was convicted in the recorder’s court for the city of Detroit of a felonious assault, and was sentenced. He has brought the case here for review upon writ of error. The information charged the defendant with an assault with a dangerous weapon, to wit, a revolver, upon one John Sczpeniek in the city of Detroit, on December 14,1919, with intent to kill and murder the said Sczpeniek. He was convicted as above stated of a felonious assault under the provisions of section 15228, 3 Comp. Laws 1915. There was direct and positive evidence tending to show that the defendant shot said Sczpeniek in the right shoulder with a revolver while intending to shoot one William McLaughlin, a watchman in the yards of the Michigan Central Railroad Com pany in said city. There was also evidence of admissions of defendant that he fired the shot. This evidence was contradicted by the defendant, who testified that he did not shoot at all on that occasion. It is sufficient to say that there was enough evidence to carry the case to the jury, and to sustain the verdict. Upon the trial there were several objections and exceptions on the part of counsel for defendant relating to the introduction of evidence, upon which error is assigned. We have examined the record with care upon this branch of the case and are of the opinion that no prejudicial error was committed by the trial court. Many of the questions related to purely collateral matters, that were not at all controlling of the case. The defendant requested the court to charge the jury as follows:
“(1) I charge you that there is no evidence in this case showing that McLaughlin was an officer authorized to carry a. gun.
“(2) I charge you that if the witness McLaughlin threatened to shoot the defendant, and the defendant was in fear he would carry his threat into execution, he would be justified in using such means as would, in his judgment, protect himself.”
Both of these requests were refused. The first request was properly refused because it was upon an immaterial matter. The second request was properly refused because there was no evidence to support it and also because of the fact that the defendant testified that he did not shoot a revolver at all, at the. time and place charged.
The sixth assignment of error is that the court erred in allowing the prosecuting attorney, over the objection of counsel for defendant, to argue to the jury: “Police officers work from 24 to 48 hours at a stretch.” The seventh assignment of error is that it was error to allow the prosecuting attorney to make the statement referring to defendant’s witness Edward Miller: “Edward Miller, a liar and a crook, who has heretofore been convicted.” The eighth assignment of error is to the effect that the court erred in permitting the prosecuting attorney to continue that line of argument and in permitting’him to ask the following question of counsel for defendant, and to' answer it himself: “Can you answer that, Dalton? Not by a minute, and you know it.” Ninth, that the court erred in permitting the prosecuting attorney, during his argument to the jury, to refer to, and mention the salaries of police officers and the salary paid him as prosecuting attorney.
The tenth assignment of error is to the effect that the court erred in its charge to the jury In the use of the following language:
“If the defendant assaulted the complaining witness with a dangerous weapon, but without intent to commit the crime of murder, and without intent to inflict great bodily harm less than the crime of murder, and is not guilty of either of the larger offenses which I. have described, then he would be guilty of felonious assault.”
The eleventh assignment of error relates to the following language used in the charge:
“That the assault, the shooting, if there was any, and I think it was admitted that there was a shooting, was with the intent of committing the crime of murder.”
Twelfth, that the court erred in charging the jury as follows:
“The errors of the court may be corrected by an appeal, as you understand, but the errors of a juror may not be.”
The thirteenth assignment of error complains of the following language in the charge:
“You must also bear in mind the situation in which he is placed when he is testifying before you, that is, that he stands here charged with a very serious offense, and you should remember the temptation there would be to him, if guilty, to tell such story whether true or false, as will best conserve his own interest.”
The assignments of error numbers six to nine, inclusive, are discussed by counsel together, and it is the claim of the appellant that he was prejudiced by the language used and the following cases are cited: People v. Huff, 173 Mich. 620, 627; People v. Cahill, 147 Mich. 201, 203; People v. Lieska, 161 Mich. 630, 637, and similar cases.
It will be noted that all the cases cited above were decided before Act No. 89, of the Public Acts of 1915 (3 Comp. Laws 1915, § 14565), became the law of this State. It is difficult to understand what the prosecuting attorney meant when he alluded to the fact that police officers worked 24 to 48 hours at a stretch. It seems to have been entirely an irrelevant matter. Counsel for defendant evidently understood that it had a bearing upon the high character of the witnesses, but that seems to us to be a forced construction, and in any view of the case we fail to see wherein it could prejudice the rights of the defendant. The most serious of these complaints is the allusion to the defendant’s witness Edward Miller, who is characterized as “a liar and a crook,” etc. The evidence in the record shows that this witness testified that he had been arrested and convicted once, and served a year in Jackson, when he was released on parole, but that did not justify the language used. That and the following allusion to defendant’s counsel are complained of, principally, upon this branch of the case. We do not think these matters are of sufficient magnitude, however, in view of our recent statute, to warrant a reversal of the case in the light of this record. We find no allusion by the prosecuting attorney to salaries of officers.
The court in its charge to the jury discussed the offense charged in the information, and called their attention to the fact that if they did not find the defendant guilty of the main offense, then, if the evidence warranted, he might be convicted of one of several lesser offenses, to wit; Assault with intent to do great bodily harm less than the crime of murder. Felonious assault. Assault and battery, or simple assault. And it was in connection with that subject that the court used the language complained of in the tenth assignment of error.
The language complained of in the eleventh assignment of error had reference to what it was necessary to prove to warrant a conviction of the offense charged, that is, assault with intent to commit the crime of murder. This language was preceded by the following:
“You must be satisfied also, second: That the defendant at the bar committed the assault, that is, that he did the shooting. Also third: That the assault was committed in the city of Detroit.”
Then follows the language complained of in the eleventh assignment of error. It is true that there was no question of “a shooting,” because it was undisputed that a gun was fired and the man, Sczpeniek, was shot in the right shoulder'. It is true that defendant denied that he did the shooting.
We find no merit in the twelfth assignment of error. It probably is true that the errors of the court may be corrected by an appeal, but the errors of a jury may not be in some instances, and it was in connection with the duty of the jury that this language was used.
The language complained of in the thirteenth assignment of error is only a part of what the court said upon the! subject of the defendant having testified in his own behalf. In that connection the court said:
“Now, in this case the defendant has taken the stand in his own behalf. He has a right to have his testimony tested the same as that of any other witness. If it is rational, natural and consistent with the other facts as you determine them to be, it may outweigh all the other testimony in the case or at least cause to exist in your mind a reasonable doubt, where otherwise such doubt might not exist. At the same time, when I say he is entitled to have his testimony tested the same as that of any other witness, you must also bear in mind the situation in which he is placed when he is testifying' before you, that is: that he stands here charged with a very serious offense; and you .should remember the temptation that there would be to him, if guilty, to tell such story, whether true or false, as will best conserve his own interest. However, gentlemen, that is all for your consideration, you are judges of the facts; you are to apply your common sense 'to all the facts in the case. Of course, when considering the defendant’s testimony, as when considering all the other evidence in the. case you should remember what I think has been given to you very often as a rule of law; that the presumption of innocence attaches to the defendant. No defendant is obliged to prove his innocence; the people must prove his guilt beyond ' a reasonable doubt. That presumption of innocence attaches to the defendant at the outset of the case; it remains with him all through the taking of testimony in the case and all through your deliberation, unless and until it is removed by such evidence as satisfies you of guilt beyond a reasonable doubt.”
In the recent case of People v. Williams, 208 Mich. 586, at p. 593, alluding to the subject of the defendant having testified, we used language which we think is applicable here, as follows:
“We cannot say that the charge as given by the trial court was erroneous. That a defendant, in a criminal case, has an interest in the outcome of the trial goes without saying.” See, also, People v. Wassmus, ante, 42.
In People v. Warner, 201 Mich. at p. 553, we alluded to the undoubted intent of the legislature in amending section 15228, above referred to.
We have considered this record carefully and are of the opinion that none of the errors complained of has resulted in a miscarriage of justice. We think the case is a proper one for the application of Act No. 89, Pub. Acts 1915, above alluded to. That act reads as follows:
“No judgment or verdict shall be set aside or reversed, or a new trial be granted by any court of this State in any case, civil or criminal, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, in the opinion of the court, after an examination of the entire cause, it' shall affirmatively appear that the error complained of has resulted in a miscarriage of justice^”
Applying this rule, we deem it our duty to affirm the judgment of the court below, and the same will stand affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Clark, Bird, and Sharpe, JJ., concurred. | [
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Wiest, J.
Defendant appeals from a decree of divorce. In Ms bill for divorce plaintiff charged defendant with extreme cruelty in leaving their home for periods of varying lengths of time, consorting with evil-minded men and women, immoral conduct, use of drugs and in calling him vile names. In her answer defendant denied the charges. The parties were married in 1888 and have three children of mature years. An examination of the testimony discloses that the parties have called each other vile names without seriously offending the sense of decency of either. The evidence does not support the charge that defendant was addicted to the use of drugs. The charge of her immoral conduct is established by evidence outside of her admission to plaintiff. His condonation of her lapse from chastity by living with her does not bar him from relief, for the reason that her subsequent conduct revived his right to make the charge. The testimony is too disgusting to be stated and of no interest to the profession.
We.feel that this is a case where the trial judge, with the witnesses before him and with the parties face to face, was in a position to pass upon the issues with certitude, and we discover no reason for setting aside his determination. The alimony awarded is a small sum but we cannot raise it under the evidence by accepting the urged value of a neighbor’s property as decisive of the value of plaintiff’s property. We must take the testimony as given and not attempt to apply the comparison urged. We are of the opinion, however, that the allowance of $125 as' permanent alimony-should be paid within 30 days from the date of the decree in this court. With this modification the decree in the court below is affirmed, without costs to either party.
Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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] |
Bird, J.
Plaintiff recovered a judgment in the Wayne circuit court against defendant Coleman for $3,608.70, in an action of tort. The judgment was not paid and plaintiff took his body on a capias ad satisfaciendum. Soon thereafter defendant Coleman gave a bond for the jail limits,' with defendants Simpson and Craig as sureties. A few months later Coleman went beyond the limits of the county of Wayne to examine some real estate. While he was outside of the county on this mission this, suit on his bond was commenced against both him and his sureties. The declaration counted upon an escape. Upon the trial the defense was that Mr. Frank J. Riggs, the attorney who had acted for plaintiff in obtaining the judgment, had conspired with other parties to induce Coleman to go outside the county. Defendants offered no proofs. The case went to the jury and they returned a verdict for plaintiff for the full amount of her judgment.
1. It is insisted on behalf of defendant Craig that a judgment should have been directed for him in the trial court because of the activities of Riggs in getting Coleman outside the county. Without going into details it is sufficient to state that there was testimony from which the jury could have inferred that Mr. Riggs was a party to a scheme to get Mr. Coleman beyond the limits of the county.
Starting with this, counsel argue that Riggs was the agent of plaintiff, and whatever he did in connection with the affair was the act of the plaintiff and was tantamount upon her part to giving her consent that Coleman might go beyond the eonfines of the county, and that if this were true no recovery could, be had for an escape. The court was of the opinion that if Riggs, plaintiff’s attorney, “assisted or connived at or procured or induced the defendant by persuasion or artifice, to go outside of the county,” this would amount to an assent on the part of the plaintiff, and no recovery could be had.
The question as to whether plaintiff’s attorney,, Riggs, was connected with the affair was a disputed question and, therefore, was one for the jury. But we are of the opinion that the question as to whether Riggs had anything to do with the affair was an immaterial one unless plaintiff was connected with it in some way. She testified, and it was not disputed, that she knew nothing about the affair and that she had never authorized Mr. Riggs, or any one else, to arrange to get Coleman outside of the county. If this were true, and we assume it was because it is not questioned, we are of the opinion that whatever Riggs did in connection with getting Coleman beyond the limits of the county would not bind plaintiff. Hahn v. Loker, 229 Mass. 368 (118 N. E. 661, L. R. A. 1918D, 807); Simonton v. Barrell, 21 Wend. (N. Y.) 362; Kellogg v. Gilbert, 10 Johns. (N. Y.) 220 (6 Am. Dec. 335); Jackson v. Bartlett, 8 Johns. (N. Y.) 361; Crary v. Turner, 6 Johns. (N. Y.) 51.
See, also, Hall v. Presnell, 157 N. C. 290 (72 S. E. 985, 39 L. R. A. [N. S.] 62, Ann. Cas, 1913B, 1293).
The case of Hahn v. Loker, supra, was a case wherein a like question was determined and it was said:
“Notwithstanding the broad discretionary power vested generally in an attorney in behalf of his client, to do whatever is reasonably necessary to obtain judgment and to collect it afterwards, he cannot, by virtue of his employment, acknowledge satisfaction of a judgment except by payment in full. Lewis v. Gamage, 1 Pick. (Mass.) 347; Shores v. Caswell, 13 Metc. (Mass.) 413; Brown v. Kendall, 8 Allen (Mass.), 209; Shattuck v. Bill, 142 Mass. 56 (7 N. E. 39). Nor has an attorney authority to bind his client by the discharge of a debtor from arrest except on payment in full of the judgment. Brown v. Kendall, supra; Simonton v. Barrell, supra; Kellogg v, Gilbert, supra; Hall v. Presnell, supra; Pomeroy v. Prescott, 106 Me. 401 (76 Atl. 898, 21 Ann. Cas. 574).”
In the earlier case of Simonton v. Barrell, supra, the same question was involved as here, and the court said in part:
“There is no doubt that,, at common law, the judgment would have been extinguished by the consent of the plaintiff, on whatever terms, to discharge the defendant from this arrest. But it is equally well settled that the attorney for the plaintiff has no power to allow a discharge -in virtue of his general authority, without the actual payment of the money. Kellogg v. Gilbert, supra.”
There being no testimony upon which a conclusion could be reached by the jury that the plaintiff had any knowledge of the acts of Riggs in connection with the affair, there was, under the cases cited, no question in the case for the jury. The trial court was of the opinion that if Riggs was engaged in the scheme to get Coleman outside of the county, it would bind plaintiff, and the question was submitted to the jury. They evidently by their verdict found that Riggs was not connected with his going. This submission to the jury and their findings did not change the situation. When the defendant failed to connect the plaintiff with any efforts made by Riggs in getting Coleman out of the county the testimony concerning the activity of Riggs should have been stricken from the case as immaterial. As the result reached by the verdict of the jury was essentially what the trial court should have directed, we can see no prejudicial error in submitting the question to the jury.
2. It appeared on the trial that Riggs’ compensation as attorney was measured by one-half of what he recovered. It is argued that this arrangement made him at least an equitable owner of one-half ' of the judgment and took the case out of the foregoing rule. We are not of the opinion that this would change the rule to be applied. There was no proof that Riggs owned the judgment or any part of it. It belonged to the plaintiff and she had the title thereto. The most that can be said is that Riggs had a lien on the judgment for his services. Inasmuch as the judgment belonged to plaintiff and no testimony was offered that she knew of or encouraged any effort to get Coleman outside the county, the testimony of her arrangement with Riggs concerning his compensation was immaterial. But even if it could be said that Riggs had the legal title to one-half of the judgment, the jury determined that he took no part in getting Coleman beyond the limits of the county, so in either event the question is foreclosed.
We think the conclusion reached was the proper one and the judgment will be affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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] |
Wiest, J.
On April 29, 1920, while working as a miner for the Banner Coal Company, Henry Stammers met with an accident to his left eye. He was treated by an eye specialist on May 3d and a foreign substance, apparently coal, was found in the cornea near the center of the pupil of the eye, causing a violent infection about which an ulcer had fully developed. June 6th the doctor had succeeded in reducing the infection and ulcer and found he could do nothing further. On September 30, 1920, the doctor examined the eye and found the infection had subsided and that a permanent scar caused by the injury had left the eye with only 5 per cent, vision. On July 8, 1920, Mr. Stammers returned to work, taking up the same employment in which he was engaged at the time of his injury and earned as much as he had prior to the accident. Compensation was awarded him from the date of the accident until his return to work. Upon his return to work he was asked to sign settlement receipts and refused to do so. Thereupon a petition was filed with the industrial accident board and upon a hearing, at which testimony was taken, the board ordered defendant to pay compensation for the loss of the eye at the rate of $14 per week from September 30, 1920, for a period of 100 weeks.
Defendants bring the case here and contend that the board was in error:
“First, in finding that the injured had lost the eye within the meaning of the act, and
“Second, that if the eye was lost, it was lost as of April 29th, 1920, instead of September 30th, and that credit for the compensation advanced from April 29th to July 8th should be given and included in the 100 weeks compensation allowed by the act, instead of 100 weeks compensation from September 30th in addition to the compensation previously advanced.”
Has plaintiff lost his eye? The usefulness of the •eye for all practical purposes has been lost. A percentage of vision so slight as to be cognizant of strong, light only and to merely give impression of large ob jects; and door and window openings can be of no use in industrial pursuits or any other vocation. Without the help of his other eye it would be impossible for him to work at all or to even go about, the streets. The injured eye has lent no aid to'plaintiff in his work since the accident.
We are urged by defendants to apply to this case the holding in Keyworth v. Atlantic Mills (R. I.), 108 Atl. 81, to the effect that the loss of 90 per cent, of normal vision of the eye, although such reduced vision is of no benefit in any vocational pursuit, is not an entire and irrecoverable loss of the sight of the eye. The statute'under consideration in that case provided compensation for the entire and irrecoverable loss of the sight of either eye, and the case stresses! such language of the Rhode Island statute.
We are of the opinion that appellee has lost his eye within the meaning of our statute, and that compensation was properly allowed during the course of the development of the injury to the permanent result, and the defendants are not entitled to be credited upon the compensation allowed by law for the loss of an eye with the weekly payments advanced from April 29th to July 8 th.
The award is affirmed.
Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Fellows, J.
On June 20, 1919, defendant gave plaintiff’s salesman an order which was accepted for 18 plush coats at $22.50 apiece. The accepted order under the head “Note: Conditions of Purchase,” contained among others the following provision:
“All goods in excess of purchase or different from samples or specifications, returnable at shipper’s expense.”
In due season plaintiff sent on 18 plush coats to defendant, which defendant’s testimony shows were different from the sample shown and were not in accordance with the order in this: that they were not H. & H. plush, were not 42 inches long but were 36 inches in length, were not 80 inches in sweep, and were but 70 inches in sweep, i. e., the measurement around the bottom of the coat; the cuffs were not set on but were tacked on; they were without windshields which were ordered. All of these defects were patent, and were discovered upon inspection. Defendant promptly notified the plaintiff of the defects and plaintiff offered to accept a return of the goods. This was refused. Defendant retained the coats and sold them. Negotiations both by mail and personal interviews were fruitless and defendant sent plaintiff a check for the amount of the bill less $5.00 per garment which it insisted, and now insists, is the amount of its damage and loss. Plaintiff refused to accept the check and this suit resulted. Upon the trial in the court below both parties asked for a directed verdict, plaintiff for the full amount claimed, and defendant for the amount of its tendered check. Plaintiff relied upon Solomon v. Weiner, 188 Mich. 114, to which should be added the cases of Stearns Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700; Cheboygan Paper Co. v. Eichberg, 184 Mich. 30, and Pennsylvania Rubber Co. v. Detroit Shipbuilding Co., 186 Mich. 305, which cases were called to counsel’s attention by the court. Defendant, relied upon numerous provisions of the uniform sales act (3 Comp. Laws 1915, § 11832 el seq.), and particularly sections 11900 and 11880. Defendant’s counsel did not seem to contend but that the former decisions of this court were to the effect that where the parties to a transaction were both dealers, and there was opportunity to inspect, that implied warranties did not survive the acceptance after inspection, but did insist .that such rule was changed by the uniform sales act and that it was- entitled to recoup its damages for the breach of both an express and an implied warranty.
The trial judge was of the opinion that inasmuch as plaintiff offered to accept a return of the coats and such offer was refused, he was, under the terms of the contract, entitled to recover the contract price. ‘ He, therefore, directed a verdict for plaintiff' for the full amount. His direction was correct and his reason sound. The parties by their contract had provided in advance for precisely the situation which arose, and had expressly agreed upon what should be done by each) in case of that contingency. If the goods were different from the sample or specification, defendant agreed to return them at shipper’s expense, and plaintiff agreed to receive them. This by the agreement was the measure of their liability. The case upon principle is controlled by Hunt v. W. F. Hurd Co., 205 Mich. 142. In that case a contract was entered into for the sale and shipment of lumber of a certain grade. If the lumber shipped was not up to grade the entire shipment was to be held intact and the seller notified within five days. Some of the lumber was not up to grade. Defendant stored it and in his defense of an action brought to recover the full contract price sought to invoke the provisions of the uniform sales act (3 Comp. Laws 1915, § 11875, subd. 4). We there said:
“The difficulty we encounter in attempting to follow counsel’s line of reasoning lies in the fact that we here have a special agreement between the parties. It cannot be doubted that at common law the parties had the right to contract; nor can it be claimed that the legislature by the uniform sales act has attempted to take away such right. In subdivision 4 of the section of the act relied upon by defendant’s counsel it is expressly provided:
“ ‘The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.'
“There is no claim of fraud in procuring the contract. While it is made by the correspondence of the parties it is free from ambiguity and by its express terms covered and provided for the exact situation which subsequently developed. It was expressly stipulated that ‘if any shipment’ was of ‘different grade * * * all of the shipment shall be held intact subject to our inspection or order,' and required complaint to be made in five days. There is no claim that defendant complied with these provisions; indeed, it is’ admitted that it used the entire shipment except the small amount that did not come up to grade, did not make complaint within the five days, and when it made remittance included $33 per thousand as payment for the rejected 6,200 feet of lumber. The parties who made this contract are business men of experience. They dealt at arms length. They are bound by their engagements.”
The section of the uniform, sales act here invoked to escape the effect of acceptance (§ 11880), like the one in the Hunt Case, recognizes the right to contract and is made applicable “in the absence of express or implied agreement of the parties.”
As we have noted, the instant case is one where an express contract exists, where the parties have by express agreement provided for the contingency which arose and agreed upon the measure of their liability. Under such circumstances we do not feel called upon to determine what the rights of the parties would be in case there was no contract, or whether the rules announced in the cases cited by plaintiff have been modified by the uniform sales act, although the question has been very ably briefed.
It may be said in passing that the other section of the uniform sales act here specially relied upon (§ 11900) has been held by this court to be but declaratory of the common law. American Varnish Co. v. Globe Furniture Co., 199 Mich. 316, 325.
The judgment must be affirmed.
Steere, C. J., and Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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Per Curiam.
Defendant was convicted by a jury of aiding and abetting second-degree murder and of being an accessory after the fact to the murder of Paul Garrett, MCL 750.317; MSA 28.549 and MCL 750.505; MSA 28.773. Defendant was sentenced to a term of from twenty to sixty years for his conviction of second-degree murder, and from three years and five months to five years for his conviction of being an accessory after the fact. Defendant appeals both his convictions as of right.
The murder of Paul Garrett occurred on March 10, 1981. On October 29, 1983, following a two-year investigation by the Michigan State Police, defendant was charged in a two-count complaint with first-degree murder and being an accessory after the fact to murder. Defendant’s trial took place from March 19 through March 29, 1984.
Trial testimony showed that defendant, Michael Smith and Paul Garrett were at a party in the late evening or early morning of March 9, 1981, at an Ypsilanti apartment house located at 219 North Adams Street. Deborah Rowland testified that Smith had asked her to call Garrett and invite him to the party that evening. Garrett arrived at the party around 1:00 a.m. after working a night shift at an area Big Boy restaurant. Defendant and Smith came to the party together, arriving before Garrett. Shortly after Garrett arrived, Rowland went to the upstairs apartment where Garrett was drinking and motioned from the door for Garrett to come and speak with her. Garrett got up and walked into the hall with Rowland.
A few minutes later loud noises were heard from the lawn, and people went outside to see what was going on. Witnesses testified that defendant, Smith, and Garrett were near defendant’s car. Rowland was standing on the porch outside the apartment house. Mark Taylor, a seventeen-year-old at the party, testified that one of the two men was yelling at Garrett about money he owed him, but Taylor could not identify which man was yelling. Defendant was near his car, while Smith and Garrett were eight to ten feet apart, near the sidewalk in front of defendant’s car. Witnesses testified that Smith went into the front seat of the car, took out a shotgun, and fired two shots at Garrett. Rowland’s testimony indicated Garrett was shot while his back was towards Smith. Witness Charles Simmons testified that Garrett was shot while facing Smith. An autopsy of Garrett showed two wounds to the back and one to the chest. Following the shots, Smith placed Garrett in the back seat of defendant’s car, and defendant along with Smith and Rowland drove off down Michigan Avenue to a rural farm area in Ypsilanti.
Rowland was the only person to testify about the event on Tuttle Hill Road, the rural area to which the defendant drove. She stated that during the ride Paul Garrett was moving and asked her for help. The group arrived at Tuttle Hill Road, where Rowland stated that defendant held a shotgun and forced her to shoot Garrett in the chest. Rowland testified on the first day of trial that Smith had shot Garrett. However, she recanted this testimony during questioning, stating that she fired the shot to Garrett’s chest after defendant helped hold the gun and forced her to shoot. Rowland’s testimony, along with that of many of the other witnesses, was inconsistent with information she had given previously. In fact, the defense attorney used a blackboard to show thirteen different stories that Rowland had given to the police and various courts.
Garrett’s body was discovered on the side of Tuttle Hill Road in the early morning of March 10, 1981, by a passing motorist. Robert Hendrix, a pathologist, conducted an autopsy of Garrett later that day. Hendrix stated the two wounds to the back were not fatal, and determined the cause of death to be a shotgun wound to the heart. Hendrix stated that he could not tell the order of the shots or at which location the victim died.
Additional testimony was introduced at trial linking the defendant to Garrett’s murder. Brenda Barron, who lived with the defendant at the time of the shooting, testified that the defendant took a shotgun and shells with him on March 9, 1981, and stated that he was going to collect money. Further, she stated that the defendant came home around 3:00 a.m. on March 10, 1981, placed the shotgun near the door, and sat on the bed crying. Barron testified that the next day defendant took his gun, wrapped it up in a blanket, and stated that he had a buyer for it. Barron said she did not see the shotgun again.
The day following Garrett’s murder defendant, Barron, Alex Mullins and Juanita Mullins went to a drive-in movie in defendant’s car. At the movie, defendant confessed to killing Garrett and told the three that he was going to turn himself in to the police.
Michigan State Police Officer Roy Turbett testified that he interviewed the defendant and informed him of the statements the Mullinses had made revealing the defendant’s confession. Turbett testified that defendant told him he had confessed to gain attention, stating that he was depressed due to a recent divorce. Defendant denied any involvement in the homicide or knowing Michael Smith.
While defendant did not testify at trial, his counsel argued in closing argument that defendant neither knew of Smith’s plan to kill Garrett nor aided Smith in this activity. Defense counsel argued that the fatal shots were fired by Smith at 219 North Adams rather than at Tuttle Hill Road.
Following jury deliberations, defendant was convicted of second-degree murder and of being an accessory after the fact to Paul Garrett’s murder.
On appeal defendant contends that he could not be convicted of both the principal offense and as an accessory after the fact. We agree.
A panel of this Court recognized this fact in People v Davenport, 122 Mich App 159; 332 NW2d 443 (1982). Davenport cited People v Lucas, 402 Mich 302; 262 NW2d 662 (1978), for the proposition. Although we agree that a person may not be convicted as both a principal and an accessory after the fact, we do not necessarily agree that Lucas stands for this position. Lucas held that an accessory after the fact is not an aider and abettor and, thus, cannot be found guilty as a principal for aiding and abetting in the commission of a felony.
The definition of an accessory after the fact given by Perkins in his treatise on criminal law includes the requirement that the accessory not be guilty of the felony as a principal. Perkins, Criminal Law (2d ed), ch 6, § 8, p 667. Perkins cites a 1937 case from Mississippi as support for this requisite, Crosby v State, 179 Miss 149; 175 So 180 (1937). After further discussion of the crime, Perkins explains that "[o]ne who is an accessory before the fact may also become an accessory to the same offense after the fact, but this is not true of one who is guilty as a principal felon.” Id., p 669. This statement of law is also recognized by LaFave and Scott in their treatise on criminal law. "A principal in either the first or second degree may not also become an accessory after the fact by his subsequent acts. However, it has been held that one who was only an accessory before the fact may also be an accessory after the fact.” LaFave & Scott, Criminal Law, § 66, p 523. Since Michigan treats all aiders and abettors as principals, regardless of whether the aid was rendered before or during the crime, logic dictates that a defendant could not be found guilty as an aider and abettor and an accessory after the fact. To do so would violate the rule that an accessory after the fact cannot be guilty of the felony as a principal.
Furthermore, we note that our Criminal Jury Instructions provide an instruction explaining the difference between an aider and abettor and an accessory after the fact, instructing the jury to choose one or the other of the offenses. CJI 8:2:02. The difference, the instruction explains, is that an aider and abettor knew about and intended to further the commission of the crime before it ended and did some act or gave some encouragement which helped in the commission. An accessory after the fact helped the person who commit ted the crime only after the crime had ended. Case law supports this distinction. People v Karst, 118 Mich App 34; 324 NW2d 526 (1982); People v Bargy, 71 Mich App 609; 248 NW2d 636 (1976). An accessory after the fact decides to help the principal only after the felony has been committed. It is impossible for one involved as a principal not to have known of the crime until after he had completed it.
In addition, allowing a defendant to be convicted as both an aider and abettor and an accessory after the fact would mean that the other principal involved would be guilty of one felony, while the defendant who helped before and after would be guilty of the principal felony and a second felony. This result is so because an accessory after the fact is defined as a person who helps "another.” Thus a second person would have to be guilty as a principal and the defendant’s help before or during the crime would also make defendant guilty as a principal. The result could be that, for instance, the person who actually committed a murder would be treated less harshly than someone who provided the gun and destroyed it after the murder.
The appropriate way to view a defendant who has helped both before and after a crime is as a principal. In the instant case the jury found defendant guilty of second-degree murder and as an accessory after the fact. We vacate his conviction as an accessory after the fact and affirm his conviction on the principal offense.
Defendant also argues that the jury was improperly instructed for two reasons. First, defendant complains that the judge misspoke by saying that aiding and abetting could happen either before or after the commission of the crime. We find, however, that the judge immediately stated, "Notice now that I am saying before or at the time of the commission of the crime. I am not talking about accessory after the fact that is in Count ii.” Furthermore, the court reiterated the correct law again seconds later, saying: "[T]he aid or assistance to the commission of murder must have been under Count I — to make the defendant guilty of Count i must have been done either before or at the time of the commission of the crime. If there was aid shown afterward, that would be considered under Count ii.” We find that the trial judge sufficiently corrected his inadvertent error.
Defendant also contends that the judge erred by instructing the jury that helping a felon escape is sufficient assistance to find defendant guilty of aiding and abetting. We hold that the trial court did not err. Planning in advance to provide a felon with a quick "getaway” is sufficient assistance to find defendant guilty as an aider and abettor. The trial judge did instruct the jury that an aider and abettor must intend the commission of the crime, thus distinguishing a defendant who forms the intent to aid a felon only after the crime and a defendant who plans in advance to provide a method of escape for a felon. We would advise, however, that in the future a judge make this distinction clear if he or she wishes to discuss escape.
Next, defendant alleges that prosecutorial misconduct requires that defendant’s convictions be reversed. We have reviewed each of the instances defendant contends amount to error requiring reversal and we find no error.
Defendant also contends that the trial court abused its discretion in qualifying Officer Dorsetto as an expert witness concerning gunshot wounds. We disagree.
Determining whether an expert witness is qualified to testify as an expert rests within the sound discretion of the trial court and will not be reversed on appeal unless there has been an abuse of that discretion. People v Potter, 115 Mich App 125, 132; 320 NW2d 313 (1982), lv den 417 Mich 897 (1983). Officer Dorsetto testified that he had taken both undergraduate and graduate courses in homicide investigation which included the topic of specific information that can be obtained from examining gunshot wounds. Additionally, Dorsetto had been employed by the Michigan State Police for ten years, the past three as a Detective Sergeant, and had a bachelor’s and a master’s degree in criminal justice. Due to the limited nature of the expert topic the trial court did not abuse its discretion in qualifying Dorsetto as an expert.
Defendant’s last allegation is that he was denied effective assistance of counsel. We have reviewed each instance of alleged ineffective assistance and we find that defendant had adequate assistance of counsel under the tests enunciated in both People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), and Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Defendant’s conviction for aiding and abetting second-degree murder is affirmed and his conviction for accessory after the fact is vacated. | [
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] |
D. E. Holbrook, Jr., P.J.
Defendants Grand Trunk Western Railroad Company and City of Flint appeal as of right from a judgment entered on a jury verdict of $500,000 against them in favor of plaintiff Booker T. Houston, Jr., personal representative of the estate of Brenda Houston, deceased. We affirm.
Plaintiff’s decedent was seriously injured on September 21, 1981, when a freight train collided with her automobile as she was crossing the train tracks on Clifford Street in the City of Flint. She died two days later as the result of her injuries. The accident occurred when plaintiffs decedent, who had been traveling southbound on Clifford Street, was stopped at the two-track grade crossing for an eastbound freight train. The flashing lights and warning bells at the grade crossing were functioning properly at the time. When the eastbound freight train had cleared the crossing, though the flashing lights and warning bells were still operating, decedent followed the car in front of her through the crossing. At this time her automobile was struck by a westbound train on the second set of tracks at the grade crossing. Apparently, the eastbound train had blocked decedent’s view of the westbound train. The basis of plaintiff’s action was defendant’s failure to install crossing gates at the Clifford Street grade crossing.
Defendant Grand Trunk’s first claim of error is that the trial court erred in excluding a Michigan Department of Transportation order of November 3, 1981, amending an earlier order requiring Grand Trunk to install crossing gates at the Clif ford Street grade crossing. We find that the exclusion of this evidence was not erroneous.
A brief outline of the underlying facts is necessary for an understanding of this issue. Clifford Street runs north and south with one lane of traffic in each direction. Two sets of railroad tracks run east and west and intersect Clifford Street. Pingree Street intersects Clifford Street at a point south of the grade crossing.
On June 12, 1969, the Michigan Public Service Commission entered an order requiring defendant city to install curbing along Pingree Street where it intersected Clifford Street. The order further required defendant Grand Trunk to install crossing gates at the Clifford Street grade crossing. The order was to be complied with within 210 days. Due to numerous factors including a proposed realignment of Pingree Street, construction of Interstate 475 and lack of federal funding, the original order was amended twice, thereby delaying its execution.
On December 9, 1977, the Michigan State Highway Commission, successor regulatory agency to the mpsc, issued an order requiring completion of the street realignment and installation of the crossing gates within 365 days. Despite the order, however, the projects had not been started and on September 24, 1979, defendant Grand Trunk had filed a letter with the mdot, successor regulatory agency to the highway commission, requesting an extension of time for compliance with the order.
On November 3, 1981, approximately six weeks after the accident herein, the mdot issued an order amending defendant Grand Trunk’s obligation to comply with the December 9, 1977, order until the city completed the street realignment work. The order provided in part:
The file record in this matter evidences an absence of compliance with the Order [of December 9, 1977], primarily due to delay in the street realignments. The two local tracks have been removed, but the crossing signal and gate work are dependent upon the street adjustments. The gtw [Grand Trunk] has requested that the 1977 Order be amended to recognize that relationship.
Therefore, it is the Director’s finding that the signal and gate adjustments required by the Order [of December 9, 1977], being substantially predicated upon the realignment of Clifford and Pingree Streets, may be made when the street work is done.
Defendant Grand Trunk sought to admit this order into evidence.
The trial court found that the order, prepared by John P. Woodford, Director of mdot, effectively made a finding that Grand Trunk’s failure to install crossing gates at the grade crossing was the result of the defendant city’s delay in the street alignments. The court concluded that if the order were admitted into evidence the jury would place undue emphasis on the opinion of Woodford finding the city liable. Hence, the order was excluded.
A decision whether to admit evidence rests initially within the sound discretion of the trial court and will not be set aside absent an abuse of discretion. Hadley v Trio Tool Co, 143 Mich App 319, 328; 372 NW2d 537 (1985); Ellis v Grand Trunk W R Co, 109 Mich App 394, 401; 311 NW2d 364 (1981), lv den 413 Mich 942 (1982). It is apparent that the trial court excluded the amended order because it might have misled the jury. MRE 403 provides in pertinent part:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
In Slayton v Michigan Host, Inc, 144 Mich App 535, 548; 376 NW2d 664 (1985), this Court ruled that in a state civil rights action, the admission of evidence of proceedings before the National Labor Relations Board was reversibly prejudicial since "the inference placed before the jury [was] that the nlrb had given to defendant’s actions its official imprimatur.” We find that the amended order was properly excluded since it was prejudicial in that it inferred that mdot believed that Grand Trunk’s noncompliance with the December 9, 1977, order was due solely to the city’s failure to realign the streets at the intersection. Although this might have been the case, it was an issue to be decided by the jury. The fear that the jury might have been confused or misled and might have decided the issue on the basis of the amended order was a legitimate concern justifying its exclusion.
It should be noted that, although the amended order was excluded, defendant Grand Trunk was not prohibited from claiming that its failure to comply with the original order was due to the city’s failure to complete the realignment construction. Indeed, two city engineers called by Grand Trunk as adverse witnesses testified that Grand Trunk could not install the crossing gates until the city completed the realignment work.
We find Ellis v Grand Trunk R Co, supra, upon which defendant Grand Trunk relies in support of its argument, to be distinguishable. The issue in Ellis was whether an order of the Michigan Department of State Highways and Transportation requiring installation of crossing lights and warn ing bells at an intersection, entered after a train-automobile collision, was admissible as a subsequent remedial measure, MRE 407. In reversing the trial court, this Court held that the order was admissible. It also found that a report prepared by the department and excluded on a similar basis by the trial court contained relevant evidence concerning the dangerousness of the grade crossing. The report was ordered admitted. In the instant case, the amended order was excluded not on the basis of MRE 407 (subsequent remedial measures) or MRE 401 (relevancy), but on the basis of MRE 403, because the amended order’s relevancy was substantially outweighed by its prejudicial effect. Consequently, we affirm the trial court’s exclusion of the November 3, 1981, amended order.
Defendant Grand Trunk next contends that the trial court erred in refusing to give a nonstandard jury instruction requested by Grant Trunk which read:
I further charge and instruct you that a person, or a railroad, has a right to assume that others will obey the law unless and until such person or railroad, in the exercise of reasonable care, has reason to expect otherwise.
We disagree.
A properly requested Standard Jury Instruction must be given if it accurately states the law and if it is applicable to the case. However, when a party requests an instruction that is not covered by the Standard Jury Instructions, the trial court may, at its discretion, give additional concise, understandable, conversational and nonargumentative instructions, provided they are applicable and accurately state the law. Young v E W Bliss Co, 130 Mich App 363; 343 NW2d 553 (1983); MCR 2.516(D). The determination of whether a requested jury instruction is applicable and accurately states the law is within the discretion of the trial court. Moody v Pulte Homes, Inc, 423 Mich 150; 378 NW2d 319 (1985). A supplemental instruction need not be given if the instruction would add nothing to an otherwise balanced and fair jury charge nor enhance the ability of the jurors to decide the case intelligently, fairly and impartially. Johnson v Corbet, 423 Mich 304, 327; 377 NW2d 713 (1985).
Since the main issue at trial was the failure to install crossing gates, the instruction was not applicable. In any event, the trial court properly charged the jury that if it found decedent had failed to comply with the grade crossing statute it could infer negligence on her part. Hence, the instruction added nothing to an already fair charge. Accordingly, the trial court did not abuse its discretion in refusing the requested instruction.
Finally, defendant Grand Trunk and defendant city both contend that the trial court erred in refusing to reinstruct the jury on the definition of "proximately contributed,” SJI2d 15.02, when it was reinstructed on the definition of "proximate cause,” SJI2d 15.01. We disagree. The applicable standard of review of instructional errors is MCR 2.613(A), which provides:
(A) Harmless Error. An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice. [See Johnson, supra, pp 326-327.]
We find that the trial court’s refusal to reinstruct the jury on the definition of "proximately contributed” was not inconsistent with substantial justice since the instruction had previously been read to the jury in conjunction with the definition of "proximate cause,” and since the jury requested reinstruction only on the definition of proximate cause. Even if error did occur, it was harmless since five out of six jurors concluded that decedent was not negligent.
In summary, we conclude that the trial court’s actions in excluding the November 30, 1981, amendatory order of the mdot, in refusing defendant Grand Trunk’s requested nonstandard jury instruction and in refusing to reinstruct the jury on the definition of proximately contributed were not erroneous.
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