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Steere, J.
Defendant was tried and convicted in the circuit court of Kent county of the crime of statutory rape under an information containing one count which charged him in proper form with having, on May 24, 1921, assaulted Mildred Sayles, a female child under 16 years of age and “then and there feloniously did unlawfully and carnally know and abuse, contrary to the form of the statute in such case made and provided,” etc. It was shown by her own and her father’s testimony that at the time of the offense as charged Mildred Sayles was under 16 years of age and attending public school. She was a large girl, weighing about 135 pounds, who had been employed at different times as an usher at the Empress: and other theaters in the city of Grand Rapids, where she had given her age as 16 years for the purpose of securing employment.
Defendant was a Lithuanian 24 years of age and employed as a cabinet maker in Grand Rapids. He had bought a second-hand automobile with which he admitted taking the girl riding at various times, having formed her acquaintance on the street, denied having sexual intercourse with her on the occasion charged or at any other time, and claimed that he cared for her a great deal, treated her as his sweetheart, and “acted like a gentleman.”
There were no other witnesses to what occurred between them on the night in question. She testified positively to his having sexual intercourse with her. He positively denied it. Much of the record is composed of his lengthy cross-examination and many of defendant’s 26 assignments of error are directed to that portion of the trial, particularly to claimed prejudicial conduct and comment of the prosecuting attorney in that connection, and attempts to collaterally impeach defendant’s answers.on cross-examination as to his commission of other offenses of like nature.
Defendant’s cross-examination disclosed that he had on various occasions when out with a boon companion driving in his automobile around the streets of Grand Rapids picked up and taken riding with them girls willing to accept their invitations and companionship. He admitted acquaintance formed in that way with several girls they had first met upon the street and taken riding. Pressed as to his conduct with them he admitted congenial associations but positively denied sexual intercourse or any improper conduct with them. During the course of his protracted cross-examination the prosecuting attorney pointed out several young women or girls he had brought into court, one with a baby in her arms, and interrogated defendant in regard to them. Defendant admitted knowing them and to having taken them riding in his car, but insisted in denial of accusing questions that his conduct when with them had.always been honorable, and he had acted like a gentleman. Taking as his text defendant’s claim that he “acted like a gentleman,” the prosecuting attorney theatrically featured his cross-examination against objection of defendant’s counsel by calling up and pointing out the girls he had arrayed in court and catechizing defendant as to his relations with them in part as follows:
“You said every girl you took out you acted as a gentleman with them?
“A. Yes, sir.
“Q. You are swearing to that, are you?
“A. Yes, sir.
“Q. Mabel (addressing Mabel Zevalkink), who is this girl standing up (referring to Mabel Zevalkink) ?
“A. Her name is Mabel. I don’t know her last name.
“Q. Has she ever been in your machine?
“A. Yes, sir.
“Q. Ever had intercourse with her?
“A. No, sir.
“Q. How often has she been in your machine?
“A. About three times. * * *
“Mr. D — . I want to object, if the court please, to this line of cross-examination. I don’t think it is competent. It is prejudicial. He is on trial for an act of intercourse on the 24th of May.
“Mr. H — . He, himself, on direct-examination, your honor, said that every girl he took out he acted as a gentleman. * * *
“The Court — I think that is proper on cross-examination.
“Q. Josephine DeWinter (addressing a girl sitting in the court room), will, you please stand up ? (Whereupon Josephine DeWinter stood up.) Do you know that girl (referring to Josephine De Winter) ?
“A. Yes, sir.
“Q. She has been in your machine?
“A. Yes, sir.
“Q. How often?
“A. Not much.
“Q. How?
“A. Not much, about 3 or 4 times.
“Q. Where did you take her to?
“A. Around the city.
“Q. Did you ever take her out in the country?
“A. No, sir.
“Q. What time of the day or night?
“A. Early.
“Q. What time I asked you?
“A. About 9 or 10 o’clock. * * *
“Q. Did you have intercourse with Josephine?
“A. No, sir.
“Q. You had sexual intercourse with her?
“A. No, sir.
“Q. You had sexual intercourse with Mabel Zevalkink and she had a baby by you?
“Mr. D — . That is improper. If he did he would have been arrested a long time ago.
“Mr, H — . Not at all. I will put her on the stand.
“Q. Isn’t the baby she has now (referring to baby in Josephine DeWinter’s arms) a baby born to her by you, the girl you had out 3 or 4, times, didn’t you?
“A. 3 or 4 times.
“Mr. D — . I object to all this line of cross-examination. * * *
“Q. Did you pick up the other girl that way, Frances DeGraff? Do you know her? She has been in your car?
"A. Yes, sir.
“Q. You picked her up that way?
“A. Yes, sir.
“Q. You had intercourse with her, too, didn’t you?
“Mr. D — . I object to that.
“The Court. He can claim his constitutional privilege.
“A. She rode in my car.
“Q. How often had she rode in your car?
“A. 4 or 5 times. * * *
“Q. Isn’t that what you did every night, right along, pick up girls on the street?
“A. Impossible. * * *
“Q. You mean when you made the answer ‘impossible,’ you mean to say perhaps it was impossible to have intercourse every night?
“A. No, sir.
“Mr. D — . That question is objected to. It is prejudicial, put in purely to prejudice the jury.
“Mr. H — . Oh, no, he has prejudiced himself. * * *
“Q. Have you heard your machine called the ‘whorehouse?’
“A. No, sir, no such thing in the world. I never did.
“Q. Are there any of these girls Lithuanians?
“A. No, I don’t know. * * *
“Q. If you were honorable with them why didn’t you stick to one girl?
“A. I tried, that was impossible.
“Q. That is impossible, too. What is impossible about that?
“A. I tried to stick with Mildred.
“Q. School girl, school girl?
“A. She told me she was 18 years old * * *
“Q. Did you want to have intercourse with them?
“A. No, sir.
“Q. Why not?
“A. Because I didn’t care to, all I wanted was just to ride around, and pass the time away after work.
“Q. Why didn’t you ride around with some men?
“A. I did.
“Q. Why didn’t you let the little girls alone?
“A. Couldn’t a fellow go out with a girl once in a while?
“Q. Yes, if they do it clean.”
Having concluded his lengthy cross-examination of defendant by a series of accusing and assertive leading questions portraying as asked dissolute and criminal relations of like nature with other girls, the prosecuting attorney called three girls he had in the court room and pursued the subject further with them. The testimony of two of them produced nothing by way of rebuttal of importance. Both testified that they had been taken riding by defendant in his automobile, that they had previously been properly introduced to him, one by her aunt, and neither gave evidence of any immoral conduct. The third was Mabel Zevalkink, as to whom the prosecuting attorney had asked defendant if he had sexual intercourse with her and asserted he would "put her on the stand.” She was a married woman carrying an infant born in lawful wedlock. She testified that she was married December 27,1920, and her baby was born on the 24th of the following June, and that in the summer of 1920 she had on different occasions gone out with defendant and also with other boys. When the prosecuting attorney asked her if “Gengels has had intercourse with you” the court sustained the objection of defendant’s counsel that it was a prejudicial effort of the prosecution to impeach defendant on a collateral matter. The prosecuting attorney however insisted and argued in the presence of the jury that it was permissible in rebuttal of defendant’s testimony that he was a gentleman with the girls he took out, and also because the offense charged required intent, for which reasons the prosecution was entitled to show his conduct with other girls as well as to test his credibility. The ruling being adhered to he asked “whether or not he told you — I ask this question for impeachment purposes and laying the foundation for it, if he had been in trouble before and if he had got out of it.” Objection to this was overruled, but on her answering, “He didn’t tell me, Andy Putt said he did,” the answer was stricken out. Amongst others the following questions and answers were permitted:
“Q. Is that your baby? (Indicating.)
“A. Yes, sir.
“Q. Did Gengels try to get you to go to a west side midwife to have an operation performed?
“A. Yes. * * *
“Q. To a married man's wife, that would be a midwife, did you go?
“A. No.
“Q. And as a result of that, that is the baby?
“A. Yes.
“Mr. D — . I want the record to show this baby talked about so much, was brought into the court room so the jury could see it, all of it being purely prejudicial.
“Mr. H — . All right, I will go further.
“Q. Who is the father of your baby?”
Objection to this question being sustained, the subject was approached as follows:
“Did he act as a gentleman with you when he was with you?
“A. No, sir.
“Q. To what extent did he go?”
This question was repeated after suggestion by the court that there were varying degrees of gentlemanliness, and ruled out.
Commenting- on this ruling counsel for the prosecution said:
“It happens to be on the very subject-matter, which, of course, this trial is about. It also — well, it attacks his credibility and as this is on another subject-matter, the court would permit it because it is on the same subject-matter, but tends to show another offense, then, it is excluded. Just as I say, I don’t do it for the purpose of showing another offense of a similar kind, but to attack his credibility as a witness that he himself opened the door to.”
While within broad limits the latitude of a cross-examination is within the trial court’s discretion the course pursued here makes well in point the following reflection in 1 Wharton’s Criminal Evidence (10th Ed.), § 52:
“Judgments of conviction have frequently been set aside because of the conduct of counsel for the prosecution in stating and insinuating other offenses than the one for which the accused was on trial, either in argument, or by repeatedly asking rejected questions and commenting on what the answers would have been if allowed.”
That a witness cannot be impeached on his answers to questions on cross-examination upon collateral matters is elementary. It is also a well established general rule that upon a trial for felony the prosecution may not introduce evidence tending to prove that accused has been guilty of other distinct and independent crimes for the purpose of proving he committed the offense charged. An exception to the rule recognized in this and many other jurisdictions is in that class of crimes where guilt depends upon the intent, guilty knowledge and purpose with which the act charged is done, as some overt act with intent to commit some felony not actually accomplished, or where a series of connected frauds, forgeries, passing counterfeit money, etc., is held competent as tending to estab Iish guilty knowledge and criminal intent. But in the crime charged here proof of the intent goes with proof of the act of sexual intercourse with a girl under the age of consent. It is not necessary for the prosecution to prove want of consent. „ Proof of consent is no defense, for a female child under the statutory age is legally incapable of consenting. ' Neither is it any defense that the accused believed from the statement of his victim or others that she had reached the age of consent. 33 Cyc. p. 1438, and cases cited.
In cases involving statutory rape, a qualified exception to the general rule only permits proof of intercourse between the prosecutrix and accused for the purpose of showing opportunity, disposition of the parties and intimate relations tending to break down self-respect and modesty. People v. Abbott, 97 Mich. 484 (37 Am. St. Rep. 360); People v. Williams, 133 Cal. 168 (65 Pac. 323); State v. Lancaster, 10 Idaho, 410 (78 Pac. 1081); State v. Trusty, 122 Iowa, 82 (97 N. W. 989). In the instant case the prosecuting attorney asserted and spectacularly attempted to directly prove, “On the very subject-matter, of course, this trial is about,” another rape committed upon another girl at a different time, having no connection with the crime charged, speciously insisting before the jury and attempting indirectly to prove by further suggestive questions the very subject-matter which the court had excluded, claiming that it was admissible by way of impeachment. The course pursued was prejudicial error.
The judgment is reversed and a new trial granted.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.
evidence of other crimes in prosecution for rape, see notes in 62 L. R. A. 314, 322, 329; 48 L. R. A. (N. S.) 236.
On effect of defendant’s mistake as to age of girl, under statute denouncing sexual offenses against female under specified age, see note in 25 L. R. A. (N. S.) 661. | [
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Fellows, C. J.
On October 28, 1874, Louis Seifferlein acquired title to the west half of the west half of the northeast quarter of section 85, township of Warren, Macomb county. On December 24, 1872, John Michael Seifferlein and his wife, Emiline, acquired title to 20 acres adjoining this 40 on the west. It would appear, although the deed is not in the record, that they then owned the 20 acres on the west of this 20, so that they owned a long 40. Louis Seifferlein was the husband of the plaintiff and John Michael Seifferlein was his uncle. The Grand Trunk railway ran diagonally through these two 40’s, cutting off a triangular piece in the northwest corner of the 40 then owned by Louis. This triangular piece fronted on the highway and adjoined lands cropped by John Michael. After these parties had acquired their title, and probably about 1880, they entered into an arrangement that John Michael should work this triangular piece and Louis should work an equal amount of John Michael’s land, and with a tape line they measured off a triangular piece of land on John Michael’s 40 adjoining Louis’ land which he was to work. This arrangement was made to save the inconvenience and hazard of crossing the railroad. While defendants claim in their answer that this agreement was an agreement to exchange titles to these triangular pieces of land there is no testimony to support such claim and all the testimony shows that the possession by each of the other’s triangular piece was permissive only. Defendants’ Exhibit 1 shows the situation and is quite necessary to its understanding, and we, therefore, make it a part of the opinion. These triangular pieces are designated on the exhibit as “easterly tri-
angle” and “westerly triangle.” But the witnesses speak of them as the “north” and “south” triangles and they will be so designated in this opinion.
On March 29, 1892, John Michael Seifferlein conveyed his 40 to John C. Foerster. He did not include in his deed the north triangle nor did he except the south triangle. On March 27, 1912, John C. Foerster and his wife entered into a contract with their son Alfred to sell him their 40. This contract .likewise did not include the north triangle nor did it except the south triangle. By 1916 the north triangle had become valuable and was desired by the Grand Trunk for the purpose of extending its yards. On March 6th, John C. Foerster and wife conveyed to their son Alfred and wife by warranty deed their 40 from which they excepted the south triangle with a recital in the deed that it had been exchanged for the other triangle. On the same day Foerster and wife executed a quitclaim deed to their' son and his wife of the north triangle. In the same month Alfred and wife conveyed the north triangle to a representative of the Grand Trunk.
Louis Seifferlein is now deceased. Before his death and in the spring of 1915 he placed the title to his 40 in himself and wife as tenants by the entirety and she now claims title as survivor. From the making of the arrangement in 1880 down to and including the year 1915 and until about the time the Grand Trunk sought to acquire the north triangle, it was worked in connection with the John Michael Seifferlein 40 and the south triangle was worked in connection with the Louis Seifferlein 40. Early in 1916, the Foersters, father and son, called on plaintiff, her husband being then deceased. The detail of their conversation is in dispute. Mr. Foerster then claimed to own the north triangle by adverse possession. There is no testimony that he had before this time made such claim to either plaintiff or to her husband before his death; Mr. Foerster was evidently willing to give something to clear up the title. Plaintiff claims that at this conversation he admitted that at the time he bought his 40 he talked about the triangle with her husband and they agreed to leave it as it was. The Foersters deny this part of the conversation. Defendants’ counsel makes much of the fact that plaintiff did not recall this part of the conversation until after a recess when she was again called to the stand. We do not attach much significance to this as Mr. Foerster did not make any denial of it when he was first upon the stand and made his denial of it when he likewise was recalled to the stand. All of these parties were interested and their testimony should be weighed with that in mind. Plaintiff, however, called a Mr. Jarvis, who, so far as this record discloses, was absolutely disinterested.' He worked for Alfred Foerster in 1914 on the Foerster farm. This was after Alfred had bought the place of his father on the contract. He testifies that he asked Alfred about the crook in the fence, having reference to the north triangle, and that Alfred informed him that “Seifferleins always worked our corner on that side and we worked their corner on this side, to save crossing the railroad.” Alfred Foerster does not deny having this conversation with Mr. Jarvis. It strongly sustains the plaintiff’s contention. The trial judge who heard and saw the witnesses found the facts to be with the plaintiff. While we hear chancery cases de novo and are not controlled by the views of the trial judge, his findings on disputed facts are not to be overlooked and in close cases his views are very helpful. We are satisfied in the instant case that he correctly measured the credibility of the witnesses and that his conclusions on the disputed facts should not be disturbed.
Let us restate the facts we find established: John Michael Seifferlein and his nephew Louis Seifferlein owned adjoining 40’s, both traversed by the Grand Trunk. A triangular piece of about 2% acres was cut off from the balance of Louis’ farm by the railroad; it was convenient for John Michael to work this piece of land; it was inconvenient for Louis; they arranged that John Michael should work it, and that Louis should work an equal amount of land belonging to his uncle, and it was measured off; this saved each from crossing the railroad in their work. When Foerster bought of John Michael he talked with Louis and they agreed to continue the arrangement. As late as 1914 each was working a triangular piece of land belonging to the other and each recognized the other’s title. Indeed, it was not until after Louis’ death, and when the land had greatly increased in value, that notice was brought home to plaintiff that the Foersters claimed title.
Upon these facts no difficult questions of law arise. This court has spoken so many times on the subject that we need not again review the authorities. Permissive possession so long as continued does not ripen into title by adverse possession; possession to be adverse must be hostile in addition to being actual, continued, visible, notorious and distinct, and it must be established by clear and cogent proof. It is not established in the instant case, but on the contrary the proofs establish that it was not hostile, therefore not adverse.
Two questions are raised on the admissibility of testimony which should be considered. John Michael Seifferlein was called to establish the arrangement between him and his nephew Louis. Counsel for defendant most strenuously urged that the testimony should not be received against the defendant Foerster, the arrangement not being with him and not binding on him. We think plaintiff’s counsel pursued the orderly course. He proved (1) that the arrangement was made, and (2) that it was brought home to Mr. Foerster. The other objection relates to the admission of tax receipts showing that Louis paid the taxes from 1886 until his death and that later his wife paid the taxes. We think they were properly received in evidence. In Croze v. Quincy Mining Co., 199 Mich. 515, this court said:
“If defendant had in good faith intended to claim the entire title it is difficult to understand why if should have permitted one-third of the premises to be assessed to plaintiff and his predecessors for 15 years, knowing, as it must have, that when they paid the taxes they did so in the belief that they were the undisputed owners thereof. The fact that defendant permitted this to be done for 15 years is very persuasive that it did not intend, during that time, to claim the entire title. While it is not conclusive of the intent, it is a circumstance to be taken into consideration in determining defendant’s intention” (citing authorities).
It follows from what has been said that the decree must be affirmed. Plaintiff 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.
right of one in permissive possession of real property to acquire title by adverse possession, see note in 12 L. R. A. (N. S.) 1140.
On hostility as essential element in adverse possession, see note in 15 L. R. A. (N. S.) 1192. | [
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] |
Wiest, J.
Defendant was convicted in the recorder’s court for the city of Detroit, under a complaint charging him with unlawfully driving a motor vehicle on a public highway without having license number plates assigned thereto by the secretary of State. Defendant’ was in the employ of Dodge Brothers, automobile manufacturers, as a motor truck driver, and at the time of his arrest was driving with a load of automobile parts to a freight depot, using a motor truck manufactured by the Packard Motor Car Company and owned by his employer and had displayed thereon the regular Dodge Brothers manufacturers’ license “No. 48-M.” The recorder found defendant guilty and fined him $10.
The case is here on writ of error and presents the question of whether a motor truck employed in the conduct of the business by a manufacturer of motor vehicles must have a separate license or comes under the law relating to general distinctive number or numbers assigned to a manufacturer. This calls for a construction of the statute relative to the registration of motor vehicles by manufacturers. The statute (Act No. 302, Pub. Acts 1915 [1 Comp. Laws 1915, § 4797 et seq.], as amended by Act No. 383, Pub. Acts 1919), provides for an application to the secretary of State for the registration of motor vehicles and the assigning of a distinctive number to each vehicle and the furnishing of a number plate, and:
“No person shall operate or drive a motor vehicle on the public highways of this State, unless such vehicle shall have the number plates assigned to it by the secretary of State conspicuously displayed.” * * *
Section 13 relates to registration by manufacturers and dealers:
“Every person, firm, association or corporation manufacturing or dealing in motor vehicles may, instead of registering each motor vehicle so manufactured or dealt in, make an application upon a blank to be furnished by the secretary of State for a general distinctive number or numbers for all the motor vehicles owned or controlled by such manufacturer or dealer. Such application shall be accompanied by an affidavit setting forth the truth of the facts therein alleged and shall contain:
“(a) A statement setting forth whether the applicant be a dealer or manufacturer;
“(b) The name, residence and business address of such manufacturer or dealer. * * *
“There shall thereupon, be assigned and issued to such manufacturer or dealer a general distinctive number or numbers and duplicate number plates in the manner provided by section four which shall be in the form of plates as provided in section twelve, duplicates of which shall be carried or displayed by every motor vehicle of such manufacturer or dealer so registered when the same is driven or operated on the public highways. Such manufacturer or dealer may obtain as many duplicate sets of such number plates as may be desired upon payment to the secretary of State of ten dollars for each duplicate set in excess of the first three issued with the license. Nothing in this section shall be construed to apply to a motor vehicle operated by a manufacturer or dealer for private use or for hire, and the operation on the public highways of this State for private use or for hire of any motor vehicle under a manufacturer’s or dealer’s license, and with the number plates assigned to any manufacturer or dealer displayed thereon, shall be deemed to constitute a violation of the provisions of this act. * * * No provision in this section shall be construed to apply to a motor vehicle operated by a manufacturer or his authorized representative between the factory where such motor vehicle is manufactured and any railroad depot, railroad siding, warehouse, steamship dock, or other place where such motor vehicle is to be delivered for shipment, or to the warehouse or salesroom of such manufacturer; Provided, That the person so operating a motor vehicle under the provisions of this section shall be a registered chauffeur under the terms hereof and shall be furnished by the manufacturer or his authorized agent with an order for the delivery of such motor vehicle to its destination, which order shall bear the date upon which it is issued and shall contain the number of the motor vehicle so operated and the point to which it is to be delivered: Provided further, That any such motor vehicle sold by the manufacturer or dealer may be driven by a registered chauffeur under its own motor power on any of the public highways of this State from the factory or place of business to the place of residence of the purchaser.” * * *
Defendant claims the truck he was driving falls within the provision of the statute permitting a general distinctive number for all motor vehicles owned or controlled by Dodge Brothers. With this we cannot agree. The motor truck he was driving was employed in the conduct of the business of Dodge Brothers. The statute relates to motor vehicles manufactured by any person or company, and the shipment, delivery, demonstration and operation thereof in the course of sale upon highways. A motor truck employed in the conduct of the business, whether purchased from another maker or made by the company so devoting the same to purely commercial purposes, such as the trucking business of the company, does not fall within the permitted registration of motor vehicles by manufacturers. Such use is in its very nature a private one, and clearly outside of permitted operation upon the public highways of the motor vehicles manufactured by the company. Nothing in other sections of the statute militates against this view. The law does not admit of manufacturers operating motor trucks upon the highways, in the general conduct of the business of the factory, under a manufacturer’s number.
Every manufacturer of motor vehicles “may, instead of registering each motor vehicle so manufactured,” make application for and obtain “a general distinctive number or numbers for all motor vehicles owned or controlled by such manufacturer,” but may not employ motor vehicles under such number or numbers upon the highways in the industrial conduct of the business of the company.
The truck so driven by the defendant- required a separate license.
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.
For authorities discussing the question of validity of license tax on automobiles, see notes in 1 L. R. A. (N. S.) 215: 21 L. R. A. (N. S.) 41; 37 L. R. A. (N. S.) 440; 52 L. R. A. (N. S.) 949; L. R. A. 1915D, 322. | [
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] |
J. E. Roberts, J.
Plaintiffs, Fife Lake Township and Everett Metro, appeal orders of accelerated judgment and summary judgment which resulted in dismissal of their claims against all of the defendants. Plaintiffs sought to invalidate an election which approved a consolidated, county-wide library district. Judgment for defendants was granted on various grounds, including the circuit court’s ruling that the votes cast in the election were properly counted pursuant to MCL 397.272; MSA 15.1780(2). We find that ruling dispositive and affirm.
The disputed election, held November 8, 1983, proposed to the electorate that defendant Traverse Area District Library be established and financed by a tax levy of not more than 0.6 mills. As certified by the Board of County Canvassers, the proposition passed with 3,243 votes in favor and 2,932 opposed. Included in the vote total were the ballots of residents of defendant Traverse City, a municipality wholly within the boundaries of defendant Grand Traverse County. Within Traverse City, votes cast in favor of the proposition were 1,720, and opposing votes numbered 713. For county residents exclusive of Traverse City, 1,523 votes were cast in favor, while 2,219 opposing votes were cast.
Plaintiffs maintain that the votes of Traverse City residents were improperly included in the total county vote. That is, plaintiffs would have Traverse City electors’ ballots counted separately from those of the remaining county residents, and would require that the county’s proposition .pass by a majority of votes exclusive of the Traverse City vote.
The creation of a district library system is authorized by MCL 397.271; MSA 15.1780(1), which provides:
Any municipality empowered by law to establish or maintain libraries or library services may cooperatively develop a plan and unite with any other municipality or municipalities for the establishment and operation of a district library.
The term "municipalities” as used in this act shall include cities, villages, school districts, townships and counties.
The procedure necessary to form such a library district is set forth in MCL 397.272; MSA 15.1780(2):
(1) The proposal to unite for the establishment and operation of a district library shall be submitted to the governing or legislative body of each municipality in the proposed district, and the vote of a majority of the members of each of those bodies shall be necessary for the adoption of the proposal.
(2) If the governing or legislative body of a municipality submits the proposal for the establishment and operation of the district library to a vote of the people, a majority of those voting on the question in the municipality shall be necessary for the adoption of the proposal.
We disagree with plaintiffs’ interpretation of MCL 397.272; MSA 15.1780(2). The primary goal of judicial construction of statutes is to ascertain and give effect to the intent of the Legislature. The words of the statute are the best source for ascertaining legislative intent. In re Harris Estate, 151 Mich App 780, 784; 391 NW2d 487 (1986). In marked contrast to subsection (1), subsection (2) of MCL 397.272; MSA 15.1780(2) contains no language requiring separate vote counts. Rather, subsection (2) refers to an election "in the municipality” as a whole, which, by statutory definition, includes an entire county. We thus read these provisions in pari materia, Parks v DAIIE, 426 Mich 191, 199; 393 NW2d 833 (1986), and conclude that, if the Legislature had intended separate vote counts under subsection (2), it would have so provided. See, City of Saugatuck v Saugatuck Twp, 157 Mich App 52; 403 NW2d 100 (1987). The residents of Traverse City are also residents of Grand Traverse County and, as qualified electors of that county, are entitled to have their ballots included in the county’s voting results. Cf., Ford Motor Co v Village of Wayne, 358 Mich 653, 666-667; 101 NW2d 320 (1960).
Plaintiffs’ analogies to other statutory schemes are unpersuasive. Unlike zoning and annexation legislation, we see no legislative policy here to protect rural areas from urban voting blocks. Compare, Ford Motor Co v Village of Wayne, supra, and Cook v Kent County Bd of Canvassers, 190 Mich 149, 154-155; 155 NW 1033 (1916).
The circuit court’s order of summary judgment in favor of all defendants is affirmed. | [
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Peterson, J.
This case calls for a reexamination of People v Florinchi, 84 Mich App 128; 269 NW2d 500 (1978), lv den 405 Mich 828 (1979), People v Pace, 102 Mich App 522; 302 NW2d 216 (1980), and People v Turner, 120 Mich App 23; 328 NW2d 5 (1982), dealing with prosecutorial failure to comply with discovery agreements and orders. Those cases equated such noncompliance with an unconstitutional denial of due process, and Pace reduces the entire problem to one test unless such undisclosed evidence is excluded at trial:
Where a prosecutor has violated a discovery order — even if done inadvertently in good faith— unless it is clear that the failure to divulge was harmless beyond a reasonable doubt, we will reverse. [102 Mich App 530-531. Emphasis added.]_
We disagree, not with the proposition that prosecutors ought to be bound by discovery orders or their own discovery agreements, but with the view that this procedural problem should be elevated to constitutional rank and locked into an inflexible remedy.
It is anomalous that otherwise admissible evidence should be excluded as the penalty for failure to comply with a discovery order or agreement when the discovery provisions of the Michigan Court Rules are expressly made inapplicable to criminal cases.
It is anomalous that otherwise admissible evidence should be excluded as the penalty for failure to comply with a discovery order or agreement made without the authority of rule or statute when such a remedy would not necessarily or even ordinarily follow in jurisdictions where discovery is authorized by rule or statute. It is anomalous that in this state where discov ery in criminal cases, without the imprimatur of rule or statute, has evolved as a discretionary matter, the trial court should be allowed no discretion in handling problems of compliance with its orders.
It is anomalous that the introduction of evidence which is authentic, relevant and otherwise admissible should result in a new trial as the penalty for failure to comply with a discovery order or agreement when such evidence would be unobjectionable on retrial.
It is anomalous that the use of otherwise admissible evidence to impeach a perjurious defendant should be perceived as due process "unfairness” because not previously disclosed to him even though evidence which is inadmissible for constitutional reasons may be so used, and even where that evidence consists of his own statements.
The ultimate anomaly, of course, given that the purpose of discovery is to aid the judicial search for truth, would be to turn the procedures intended to accomplish that purpose into a substantive bar to the proof of that which is true and, by precluding proof of the truth, produce a miscarriage of justice, a wrong verdict. This is such a case: had the trial judge heeded Pace and excluded the evidence in question, all the other evidence in the case would have been seen in a different light and might well have resulted in the acquittal of a guilty man.
Defendant appeals his jury conviction of receiving and concealing stolen property of a value over $100, MCL 750.535; MSA 28.803. The stolen property in question was a pickup truck which was found in the possession of Calvin Veldt and George Lipponen, friends of the defendant. They testified that when defendant was visiting them at Brim ley in the Upper Peninsula, he indicated that he could get a stolen pickup truck for Veldt cheap; that they returned with defendant to his lower peninsula home in Mason County on January 28, 1982; that the truck in question was stored in defendant’s garage; and that Veldt bought the truck from defendant for $2,000.
Defendant denied selling the truck to Veldt. He testified that, while visiting with Veldt and Lipponen at Brimley, he had told them that there were trucks for sale cheaper in Mason County than around Brimley; that Veldt and Lipponen then came to Mason County with him; and that they purchased a truck while he was not with them and under circumstances of which he had no knowledge. He also testified that he could not have kept a truck in his garage because the garage was full of junk and wood. In support of this latter testimony, defendant called witnesses who testified that they had been at defendant’s residence on and shortly before January 28, 1982; that his garage was full of wood; and that there was no truck in the garage. Defendant also offered the testimony of character witnesses.
Unfortunately for defendant, his version of events, which might otherwise have seemed persuasive, and the depiction of his good character and truthfulness were destroyed during his cross-examination by a letter he had written to a friend, and by his ineffectual attempts to disavow the letter and then to explain it. The letter, received as an exhibit over objection, clearly demonstrated defendant’s guilt and asked the friend to put pressure on Veldt to change his story so as not to implicate the defendant.
After the proofs were closed, defendant’s attorney raised a different question about the letter, apparently seeking a mistrial. He pointed out that he had made an informal discovery agreement with the prosecuting attorney as to prosecution evidence and that the prosecuting attorney had never disclosed the existence of the letter pursuant to the agreement. The prosecuting attorney acknowledged the existence of the informal discovery agreement, but waffled about compliance with it. He first attempted to deny noncompliance and to shift the onus to defense counsel by saying that he wasn’t sure whether defense counsel had the letter, that he was "not prepared to say of record that he [defense counsel] absolutely, positively had a copy of the letter and lost it.” When the trial judge tried to pin him down, the prosecutor then claimed that he had only learned of the letter the night before trial and that it was given to him the day of trial, but later he retreated into ambivalence, saying, "It is our policy to give everything we have and I would assume that if we have had it, then he should have gotten it, but I don’t think we got it . . . .”
Without further inquiry, the trial court accepted the prosecutor’s claim that the existence of the letter was unknown to the prosecutor until the night before the trial. Insofar as the trial court’s comments might seem to hold that this excuses compliance with a discovery order or agreement, we disagree. An agreed or ordered duty to disclose is a continuing obligation; the prosecutor’s failure to disclose the letter before the commencement of the trial and his use of the letter without its prior disclosure was a violation of that obligation.
Neither do we agree with the trial judge’s comments, finding it significant that there was no motion for discovery,* for we agree with Florinchi in its holding that discovery agreements are to be given the same effect as discovery orders. Given the agreement and given the prosecutor’s failure to disclose the letter pursuant thereto, the trial court’s finding that there had not been "any error committed by the Prosecutor” is erroneous. That is not, however, the critical inquiry here. Given the prosecutor’s violation of the discovery agreement, the critical question is as to the appropriate response and remedy by the trial court.
Here the trial judge, though believing that there was no prosecutorial error, did precisely the right thing if we are to judge by what is done in our sister states and in the federal courts. He invited inquiry into whether and how defendant was prejudiced by the failure of the prosecutor to disclose the letter. His inquiry to defense counsel as to whether there might be any other witnesses that defendant would have called was an invitation to reopen proofs and to recess the trial until further inquiry could be made. Defense counsel made no such motions, however. His only showing of prejudice, other than the bald assertion thereof, was to say that even in hindsight it was difficult to say what might have been done differently other than to "perhaps” call the recipient of the letter. The trial judge concluded that if there had been "any error on the part of the People ... it was harmless”; that although the letter was very damaging to the defense, it was admissible evidence to which no objection other than nondisclosure could be made. That reasoning clashes with Pace where, without any showing of actual prejudice, the Court applied a constitutional standard of review and assumed that the error could not be harmless beyond a reasonable doubt. Pace, too, involved the use of the defendant’s own words for impeachment and the Court said, as the defendant now says here, that had defense counsel known of the statements he might have advised his client not to testify or might have adopted some strategy for minimizing their impact.
In 1978, People v Florinchi, supra, was the first Michigan case to address the question of a remedy for noncompliance with a discovery order or agreement. It was also the first Michigan case to speak of discovery in terms of constitutional rights. In Florinchi a defense motion for discovery of police reports was denied on the basis of representations of the prosecutor that he had already furnished such reports to defense counsel pursuant to a voluntary discovery agreement. At trial, however, cross-examination of a police officer revealed that there were undisclosed police reports ("tip sheets”) bearing on the case containing names of witnesses who would or might be favorable to the defense, some of whom had left the state and were unavailable as witnesses.
The Court properly noted Michigan’s long history of requiring the prosecution to produce at trial evidence that may bear on the innocence of the accused as well as on guilt, and pointed out that Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), held that suppression by the prosecutor of evidence favorable to the accused was an unconstitutional denial of due process. Unfortunately, Florinchi did not go on to state a conclusion that violation of a discovery order resulting in nondisclosure of exculpatory evidence might also involve a violation of Brady v Maryland. Instead Florinchi used overbroad language putting discovery generally on a constitutional basis:
At common law, defendant had no right to discover any evidence held by the prosecutor. People v Johnson, 356 Mich 619; 97 NW2d 739 (1959). Considerations of due process and fundamental fairness, however, led the courts to develop a rule that pretrial discovery of things admissible in evidence was a matter within the sound discretion of the trial court, People v Johnson, supra, People v Maranian, 359 Mich 361; 102 NW2d 568 (1960). [84 Mich App 133-134.]
While the statement is correct in indicating that discovery has evolved in Michigan as a discretionary matter, it is incorrect in attributing that evolution to due process considerations. Neither Johnson nor Maranian so hold and no language in either can be so construed. To the contrary, Johnson quotes with approval from State v Johnson, 28 NJ 133; 145 A2d 313 (1958), including language that pretrial discovery is not constitutionally assured, and also cited Cicenia v LaGay, 357 US 504; 78 S Ct 1297; 2 L Ed 2d 1523 (1958), which held that denial of discovery did not constitute a denial of due process.
Two years after Florinchi, Pace was decided. In Pace an attempt was made to impeach the defendant by cross-examination as to prior inconsistent statements which statements had not been disclosed to defense counsel despite an explicit discovery order. Unlike Florinchi, the evidence was not exculpatory so the due process concerns of Brady v Maryland were not involved. Nonetheless, citing no authority other than Florinchi, Pace imposed a constitutional standard for review holding that prosecutorial noncompliance with a discovery order would always result in reversal unless harmless beyond a reasonable doubt, rejecting the arguments that the defendant need not be advised of his own statements, and that evidence inadmissible for constitutional reasons could nonetheless be used for impeachment. A year after Pace, People v Turner, supra, expansively described Pace in due process terms and then tersely described the noncompliance with the discovery order therein as harmless beyond a reasonable doubt.
Pace and Turner, if given face value, thus produce the following results:
1. Prosecutorial noncompliance with discovery orders or agreements, not only as to exculpatory but as to inculpatory evidence, is held to be an unconstitutional denial of due process;
2. Where there has been such noncompliance, the trial court has no discretion but must exclude the undisclosed evidence under pain of reversal unless the error is found to be harmless beyond a reasonable doubt, thereby excluding consideration of the causes of the noncompliance, good faith, degrees of negligence, the nature and degree of prejudice resulting, and whether some other remedy would be appropriate.
3. No exception is made for evidence of which defendant has independent knowledge, such as his own statements, not even for impeachment when the defendant has testified differently if not downright perjuriously.
There is, unnoticed in this evolution, an analogous Michigan precedent involving noncompliance with the statutorily mandated discovery as to alibis. In People v Merritt, 396 Mich 67; 238 NW2d 31 (1976), the defendant failed to provide the prosecution with the notice and disclosure required by the alibi statute. As it then existed, the statute gave the trial court discretion to exclude alibi evidence where the statutory discovery had not been given, and the trial court did exclude the defendant’s alibi evidence.
The Supreme Court reversed defendant’s conviction and remanded for new trial, finding an abuse of discretion on the part of the trial judge. Drawing on People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972), as to the means of determining whether an abuse of discretion has occurred, the Court said that merely to recognize the risk of false evidence was not enough since the exclusion of evidence is an "extremely severe” sanction "and the judge’s discretion in exercising preclusion should be limited only to an egregious case.” 396 Mich 82. The exercise of discretion, said Merritt, requires inquiry into all the pertinent circumstances, i.e., the causes and bona tides of tardy, or total, noncompliance, and a showing by the objecting party of actual prejudice. The trial court must also recognize that it "has ample discretionary powers other than preclusion,” 396 Mich 79, in providing a remedy for noncompliance with the statute, e.g., continuance._
[W]hether the choice was an appropriate one varies with the facts of each case, and must inevitably involve a weighing of the competing interests involved. Where the preclusion sanction is involved these issues become: do the possible risk of false testimony and the interruption in the orderly process of justice justify this intrusion on defendant’s right [to present evidence]?
Obviously, there may be occasions when defendant’s delaying tactics or clear disregard for the rules leave the trial court no other choice. At times, however, perhaps because of late discovery of witnesses despite a diligent search, or other circumstances beyond the control of defendant and his or her counsel, the interest of the state in fullest discovery and a fair trial for defendant might well outweigh any negative effects on the trial process. [396 Mich 82-83.]
While this language speaks of a choice between preclusion or continuance as to disclosure of alibi witnesses, it would seem equally applicable to discovery of any evidence, whether offered by the defense or the prosecution, and actually understates the case against preclusion since there may be appropriate discretionary remedies other than continuance.
The decision in Merritt is sensible when one considers the purposes of discovery. People v Johnson, supra, in recognizing the discretion of the courts to allow discovery because of "the inherent power of the trial court to control the admission of evidence so as to promote the interests of justice,” 356 Mich 628, quoted with approval from State v Tune, 13 NJ 203; 98 A2d 881 (1953), adhered to, 17 NJ 100; 110 A2d 99 (1954), cert den 349 US 907; 75 S Ct 584; 99 L Ed 1243 (1955), which in turn quoted from 60 Yale L J 626:
The purpose of broad discovery is to promote the fullest possible presentation of the facts, minimize the opportunities for falsification of evidence, and eliminate the vestiges of trial by combat. [356 Mich 621-622, n.]
While nothing in the subsequent history of discovery suggests that the third objective is attainable, neither has experience shown that the first two objectives are incompatible. As Merritt held, no good purpose would be achieved by shaping discovery procedures to limit the presentation of facts because of the risk of falsification of evidence if other means are available to minimize that risk. Rather, when noncompliance with a discovery statute, rule, order or agreement occurs, it is appropriate in resolving the problem to determine what legitimate interests of the courts and of the parties are involved and how they may be affected by the remedial choices available.
As to the courts, their paramount interest in discovery is that it should facilitate the search for truth to the end of producing a just result. As noted in Merritt, that is more important than the legitimate concern with prompt disposition of the court’s calendar. Continuance as a remedy to allow the opportunity to investigate tardily disclosed evidence does interfere with efficient court administration but it serves the greater public interest of insuring that the trial, when concluded, will not be skewed by the exclusion of trustworthy evidence. In that respect, the result of Pace not only militates against efficient court calendaring by requiring retrial (at which the undisclosed evi dence would then be properly admissible), but affects the interest of the court and of the public by the additional expense involved and by the risk that a retrial may produce a wrong result because of the delays involved. And, while the courts have an interest in the integrity of their orders, nothing about noncompliance with a discovery order seems to be the moral or constitutional equivalent of an illegal search or coerced confession so as to justify the extreme sanction of exclusion of evidence without regard to its truth. Other sanctions are available and adequate to deal with counsel who cause the courts and opposing litigants expense and delay by noncompliance with court orders.
What legitimate interests does a party have in discovery which should be addressed and protected, and what remedies are appropriate when such interests are prejudiced by noncompliance with discovery orders or agreements?
Those interests are noted in the quotation from Johnson, above, i.e., the means to better prepare the party’s own case, and the opportunity to assay the opponent’s evidence to "minimize the opportunities for falsification of evidence.” It is the latter interest with which we are primarily concerned where, as here, previously undisclosed evidence is offered which is unfavorable to the objecting party. It is not a valid objection to the use of such evidence that such evidence is "prejudicial” in the sense of being unfavorable; neither is it a valid objection that the offer of such evidence is a surprise, though obviously the question of whether the objecting party is in fact surprised by the proffered evidence is pertinent to the determination of whether the nondisclosure warrants any remedy whatever. The question, rather, in any given case is first, whether the party’s interest in preparing his own case or his opportunity to test the authenticity of his opponent’s evidence has been prejudiced by a noncompliance with a discovery order or agreement, and second, if that be the case, what remedy may be appropriate giving due regard to the competing interests of the opposing party, the court and the public. A remedy which would put the objecting party in a better position than he would have enjoyed had disclosure been timely made would seem of dubious value, particularly if it does violence to other legitimate interests in the case. It would be a contradiction in terms, for instance, to exclude a genuine and relevant document only because the objecting party had not had an opportunity to verify its authenticity.
We need not discuss all of the possible circumstances under which it might be determined that some remedy for nondisclosure would be warranted, or what remedies should apply in particular circumstances. Suffice it to say that we concur with the cases cited herein that the trial courts have discretion to deal with questions of noncompliance with discovery orders or agreements; that in fashioning remedies in the exercise of that discretion, there must be a fair balancing of the interests of the courts, the public, and the parties; and that the exclusion of otherwise admissible evidence is a remedy which should follow only in the most egregious cases. In this case we find that defendant was entitled to no remedy for the prosecutor’s nondisclosure of the letter in question since the defendant, having written it himself, had knowledge of it independent of discovery.
Defendant’s other claims of error are without merit, and some were not, in any event, preserved for appellate review by proper objection in the trial court. Thus, defendant claims that the trial judge failed to give the appropriate jury instruction on character witnesses, CJI 5:2:05; however, he not only failed to request that instruction but gave approval to the trial court’s instructions as given. People v Sherman Hall, 77 Mich App 456; 258 NW2d 517, lv den 402 Mich 909 (1978); People v Federico, 146 Mich App 776; 381 NW2d 819 (1985). He claims that the prosecuting attorney improperly offered evidence on rebuttal that should have been offered in the case in chief, citing People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), but he made no objection thereto at trial. MRE 103(a) and (d); MCL 769.26; MSA 28.1096; Taylor v Lowe, 372 Mich 282; 126 NW2d 104 (1964); People v Federico, supra.
Defendant’s claim of prosecutorial misconduct by the improper introduction of evidence of similar offenses by defendant is not borne out by the record. A prosecution witness volunteered a statement that could have been construed as meaning that he had gone to see defendant on a different occasion to buy stolen property. There is nothing to suggest that the prosecutor was intentionally trying to improperly bring out such a response from the witness. Moreover, the witness was quickly cut off by proper objection and the trial judge acted quickly and carefully in response and gave an appropriate curative instruction to the jury. People v Philip Drake, 142 Mich App 357; 370 NW2d 355 (1985).
Neither do we find merit in the claim that the trial judge erred by failing to grant a defense request to adjourn the trial because of the absence of a defense witness. Continuances and adjournments are within the discretion of the trial judge, but the exercise of that discretion is invoked only by a showing of good cause and diligence. People v Charles O Williams, supra. Conversely, it is an abuse of discretion on the part of the trial judge to deny adjournment to a party who can show good cause and diligence if that party is prejudiced by the denial.
GCR 1963, 503.2 dealt with adjournments be cause of the absence of a witness or evidence:
A motion to postpone or continue a trial due to the unavailability of a witness or evidence must be made as soon as possible after ascertaining the facts. A continuance shall be granted on the ground only if the court finds that the evidence is material and that diligent efforts have been made to secure the witness or evidence. If the testimony or the evidence would be admissible upon the trial, and the adverse party stipulates in writing or on the record that it shall be considered as actually given on the trial, there shall be no postponement or continuance unless the court, in the furtherance of justice, deems a continuance necessary.
Here, after the defense had presented a number of witnesses, the court was asked to recess the trial because of the absence of a witness who, it was said, was in New York. The witness, however, had not been subpoenaed and, obviously, as in People v Gross, 123 Mich App 467; 332 NW2d 576 (1983), and People v Knox, 364 Mich 620; 111 NW2d 828 (1961), no one could assure the court when, if ever, the witness would appear. As Knox held, the failure to attempt to secure the attendance of the witness by subpoena is such lack of diligence as to warrant the trial judge’s denial of the motion for adjournment.
In any event, the failure to have the supposed witness heard by the jury did not prejudice the defendant. In the first place, a stipulation as to what the witness would have testified if present was given to the jury as allowed by GCR 503, and that testimony was only cumulative of testimony given by other defense witnesses. In the second place, defendant was not prejudiced in the sense contemplated by People v Wilson in that a review of the entire record affirmatively shows that the claimed error did not result in a miscarriage of justice.
Affirmed.
Hood, P.J., concurred.
It is particularly appropriate to reconsider these cases at this time when proposed rules of criminal procedure are being considered for adoption in this state. See 422A Mich 1 (1985) and particularly proposed rule 6.212. See also Grano, Implementing the objections of procedural reform: The proposed Michigan Rules of Criminal Procedure-Part I, 32 Wayne L R 1007 (1986).
See also People v McConnell, 124 Mich App 672; 335 NW2d 226 (1983). We note that there are several other decisions which speak of "fundamental fairness” in cases involving noncompliance with discovery orders, but which do not apply a constitutional due process standard, e.g., Harbor Springs v McNabb, 150 Mich App 583; 389 NW2d 135 (1986); People v Denning, 140 Mich App 331; 364 NW2d 325 (1985); In re Bay Prosecutor, 109 Mich App 476; 311 NW2d 399 (1981).
MCR 6.001(B).
Thus, Rule 16(d)(2) of the Federal Rules of Criminal Procedure provides a choice of remedies for nondisclosure:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing the evidence not disclosed, or it may enter such other order as it deems just under the circumstances.
Procedural rules or statutes in many states duplicate the federal rules or go to even greater length in enumerating possible remedies for nondisclosure, e.g., Fla R Crim P 3.220(j); La Code Crim P 729.5A; Mo Sup Ct R 25.16; Ohio Crim R 16(E)(3); Pa R Crim P 305 (E). And as noted herein, exclusion of evidence is generally viewed as a harsh remedy, to be imposed only in rare and extreme circumstances.
Other remedies may also exist apart from those enumerated in rules or statutes dealing with discovery in criminal cases. Thus, the trial courts undoubtedly have powers that are inherent in the court’s jurisdictional authority, or which may be specified by rule or statute, to deal with and impose sanctions for misconduct of counsel.
People v Johnson, 356 Mich 619; 97 NW2d 739 (1959); People v Ranes, 58 Mich App 268; 227 NW2d 312 (1975). See also People v Freeman (After Remand), 406 Mich 514; 280 NW2d 446 (1979); People v Borney, 110 Mich App 490; 313 NW2d 329 (1981); People v Baskin, 145 Mich App 526; 378 NW2d 535 (1985); Harbor Springs v McNabb, n 2 supra, all noting the discretionary nature of the trial court’s discovery practice, and the review of such questions for abuse of discretion.
To the contrary, the imposition of remedies for noncompliance with discovery is, Pace and Turner excepted, considered to be a discretionary matter. See United States v Valencia, 656 F2d 412 (CA 9, 1981), cert den sub nom Duarte v United States, 454 US 903; 102 S Ct 411; 70 L Ed 2d 222 (1981); United States v Euceda-Hernandez, 768 F2d 1307 (CA 11, 1985); United States v Andrus, 775 F2d 825 (CA 7, 1985); State v Lukezik, 143 Ariz 60; 691 P2d 1088 (1984); Hunter v State, 8 Ark App 283; 653 SW2d 159 (1983); People v District Court of 2nd Judicial District, 664 P2d 247 (Colo, 1983); Hickey v State, 484 So 2d 1271 (Fla App, 1986); People v Norks, 137 Ill App 3d 1078; 92 Ill Dec 406; 484 NE2d 1261 (1985); Stark v State, 489 NE2d 43 (Ind, 1986); State v Clark, 446 So 2d 293 (La, 1984); State v Dube, 478 A2d 1138 (Me, 1984); State v Smith, 367 NW2d 497 (Minn, 1985); State v Johnson, 702 SW2d 65 (Mo, 1985); State v Hunt, 184 NJ Super 304; 445 A2d 1186 (1981); State v Misenheimer, 304 NC 108; 282 SE2d 791 (1981); State v Parson, 6 Ohio 3d 442; 453 NE2d 689 (1983); Commonwealth v Melendez, 326 Pa Super 531; 474 A2d 617 (1984), State v Quintal, 479 A2d 117 (RI, 1984); State v Smith, 367 NW2d 497 (Minn, 1985).
As is seen, this discretion not only is implicit where a rule or statute specifies alternative remedies for noncompliance but has been held to exist in jurisdictions where discovery has evolved without rule or statute.
In order to determine what remedy is appropriate in the exercise of such discretion, the trial courts inquire into the reason for nondisclosure; the nature, relevance and relative importance of the evidence; the interests of the court and of the parties; and the feasibility of a particular remedy under those circumstances. State v Myers, 10 Kan App 2d 266; 697 P2d 879 (1985); United States v Coronel, 750 F2d 1482 (CA 11, 1985); People v Hinton, 122 Ill App 3d 89; 77 Ill Dec 487; 460 NE2d 791 (1984); State v Ricci, 472 A2d 291 (RI, 1984); State v Dyson, 292 Or 26; 636 P2d 961 (1981).
Review on appeal then, is as to abuse of discretion. United States v Levine, 700 F 2d 1176 (CA 8, 1983); Hunter v State, 8 Ark App 283; 653 SW2d 159 (1983); Wilkerson v State, 461 So 2d 1376 (Fla App, 1985); Harris v State, 425 NE2d 112 (Ind, 1981); State v Mitchell, 412 So 2d 1042 (La, 1982); State v Misenheimer, 304 NC 108; 282 SE2d 791 (1981); State v Fricke, 13 Ohio App 3d 331; 469 NE2d 1035 (1984); People v Merritt, supra.
Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971); United States v Havens, 446 US 620; 100 S Ct 1912; 64 L Ed 2d 559 (1980).
Defendant claims that the letter was improperly received as an exhibit because it was not properly authenticated, but that claim was not preserved for appellate review by proper objection. The objection made at the time was for a different reason which was without merit and which is not pursued on appeal. An objection without proper reason is the same as no objection. Brown v Weightman, 62 Mich 557; 29 NW 98 (1886); O’Donnell v Oliver Iron Mining Co, 273 Mich 27; 262 NW 728 (1935)
The authentication objection is without merit in any event. While defendant would not admit writing the letter, he also said that he would not deny writing it. He acknowledged that the letter was in his handwriting and that it bore his signature. He then went on to explain the letter by saying that it was written because he "wanted to get out of it.” That constitutes "evidence sufficient to support a finding” of authenticity under MRE 901(a).
Where the trial court has discretion as to how to handle claims of noncompliance with discovery orders, a hearing is required, not only to determine whether there has been a noncompliance but to inquire into the causes thereof, its impact, and any circumstances that might bear on the choice of an appropriate remedy. See e.g., United States v Fernandez, 780 F2d 1573 (CA 11, 1986); Raffone v State, 483 So 2d 761 (Fla App, 1986); State v Smith, 367 NW2d 497 (Minn, 1985). And see the concurring opinion of Cynar, J., in People v Pace, 102 Mich App 535.
There are countless cases in which last minute disclosure has been held appropriate so long as the prosecutor made the disclosure as soon as he became aware of the existence of the evidence. Crafton v State, 450 NE2d 1042 (Ind App, 1983). And see State v Mitchell, 412 So 2d 1042 (La, 1982), a case which has facts almost identical to this case, in which the court suggested that if the prosecutor, who heard about the letter the day before trial and got it after trial started, had disclosed it to the defense at any time prior to defendant’s beginning his testimony, there would have been no prosecutorial error.
The trial judge held:
And based on the fact you’ve not made any motion to produce and the People haven’t led you to believe, at least of record, that they’ve produced any or all of those things they might be using against your client, I don’t find there would be any problem in the reception of that document ....
The prosecutor, however, had just told the court that there was a discovery agreement, and the transcript of the pretrial conference not only confirms the discovery understanding but also contains an affirmative assertion by the prosecutor that he had disclosed his evidence to defense counsel.
As is already noted herein, Florinchi considered the prosecutor’s agreement to disclose as binding upon him the same duty that would have been imposed by a court order for discovery.
People v Dellabonda, 265 Mich 486; 251 NW 594 (1933); People v Davis, 52 Mich 569; 18 NW 362 (1884), and cases cited therein.
The rejection was based on the content of the statements, the court holding that they were not so obviously incriminating that the defendant would naturally remember them and divulge them to his attorney. People v Turner, supra, went the next step and said it was irrelevant whether the undisclosed evidence was obviously incriminating or not.
See n 7. In so holding, Pace made no mention of People v Lynn, 91 Mich App 117; 283 NW2d 664 (1979), aff'd 411 Mich 291; 307 NW2d 61 (1981), which held that use of the defendant’s undisclosed statements to impeach was permissible and that nondisclosure of defendant’s own statements wasn’t prejudicial since he must be presumed to know of them.
Of like nature, see People v McConnell, n 2, supra.
We can find only two recent cases similar to Pace in facts and result. In State v Mitchell, n 10 supra, the allowance of the use in cross-examination of an undisclosed letter written by the defendant was held to be an abuse of discretion on the ground that defendant’s opportunity to prepare his defense was prejudiced by the nondisclosure. In Long v State, 431 NE2d 875 (Ind App, 1982), the use of defendant’s inconsistent oral statement in cross-examination was held to be a denial of due process and effective assistance of counsel, a holding which seems consistent with other Indiana cases holding that noncompliance with discovery orders gives the trial court discretion as to an appropriate remedy, e.g., Stark v State, supra; Boyd v State, 485 NE2d 126 (Ind, 1985); Dudley v State, 480 NE2d 881 (Ind, 1985); Murray v State, 479 NE2d 1283 (Ind, 1985); Counceller v State, 466 NE2d 456 (Ind, 1984); Jacobs v State, 436 NE2d 1176 (Ind App, 1982); Crafton v State, 450 NE2d 1042 (Ind App, 1983).
As noted hereafter, the rule elsewhere is that a failure to disclose the defendant’s own statements or other evidence of which he has actual knowledge does not bar the use of such evidence against him.
We note that in People v McPherson, 419 Mich 951; 357 NW2d 658 (1984), the Court summarily reversed an unpublished Court of Appeals decision and ordered a new trial in a case of prosecutorial noncompliance with a discovery order. The summary order turned solely on a construction of what the discovery order meant and did not consider the question of appropriate remedies for noncompliance with discovery orders.
We can find only one other case that would agree with the sweeping assertion in Pace that good or bad faith of the prosecutor is irrelevant. State v Kaiu, 692 P2d 1166 (Hawaii App, 1984), but compare State v Marzo, 641 P2d 1338 (Hawaii, 1982). To the contrary, holding that it is pertinent to what, if any, remedy should follow from the nondisclosure, see United States v Soto, 711 F2d 1558 (CA 11, 1983); United States v Petito, 671 F2d 68 (CA 2, 1982), cert den 459 US 824; 103 S Ct 56; 74 L Ed 2d 60 (1982); People v Hunt, 133 Cal App 3d 543; 184 Cal Rptr 197 (1982); Hickey v State, 484 So 2d 1271 (Fla App, 1986); People v Fernetti, 117 Ill App 3d 44; 72 Ill Dec 537; 452 NE2d 790 (1983), rev on other grounds 104 Ill 2d 19; 83 Ill Dec 375; 470 NE2d 501 (1984); Wagner v State, 474 NE2d 476 (Ind, 1985); Boyd v State, 485 NE2d 126 (Ind, 1985); Counceller v State, 466 NE2d 456 (Ind, 1984); State v Myers, 10 Kan App 2d 266; 697 P2d 879 (1985); State v Scott, 461 So 2d 426 (La App, 1984); State v Mylon, 462 A2d 1184 (Me, 1983); State v Buchmann, 380 NW2d 879 (Minn App, 1986); State v Carter, 185 NJ Super 576; 449 A2d 1362 (1982); State v Parson, 6 Ohio 3d 442; 6 OBR 485; 453 NE2d 689 (1983); State v Babbit, 457 A2d 1049 (RI, 1983); Hernandez v State, 636 SW2d 611 (Tex App, 1982).
While the nature and degree of prejudice would presumably be an appropriate consideration in determining whether the admission of the evidence was harmless beyond a reasonable doubt, Pace and Turner assume prejudice. By this reasoning, whether the evidence is harmless beyond a reasonable doubt depends on the significance of the evidence in question when compared with the other evidence in the case. Decisions from other states more correctly note that introduction of evidence of incriminating nature is always prejudicial, and that the real issue is whether the defendant was substantially prejudiced by the untimeliness of its disclosure. See Johnson v State, 461 So 2d 1385 (Fla App, 1984). We note that there are some Michigan decisions which, though not speaking of an abuse of discretion standard of review of the trial court’s treatment of noncompliance with discovery orders, seem to be applying that standard by examining the evidence in question in terms of its possible prejudice to the defendant, e.g., People v Lynn, supra, n 15; People v Hayward, 98 Mich App 332; 296 NW2d 250 (1980); People v King, 98 Mich App 146; 296 NW2d 211 (1980).
MCL 768.20; MSA 28.1043.
Williams involved the exercise of discretion in considering a request for a continuance. See n 30, infra.
The Court cited with approval People v Robinson, 54 Mich App 704; 221 NW2d 596 (1974), where a simple declaration by a prosecutor that he was prejudiced was held inadequate.
People v Turner, supra, p 33, notes that discovery precipitates disposition of cases without trial, thereby reducing the court trial calendar. Noncompliance with discovery in this sense may impede pretrial settlements and thus adversely affect the court’s calendar, but no more than no discovery at all; and, once trial has begun, that hardly seems important as a factor to consider in determining whether otherwise admissible evidence should be excluded.
The primary thrust of trial preparation is the marshaling of evidence to prove relevant facts. Discovery enhances the likelihood that the litigant will find evidence favorable to his cause so that "the fullest possible presentation of the facts” will be made. To the extent that this entails disclosure by the prosecution in a criminal case of evidence favorable to the defense, due process is involved, not because discovery procedures are constitutionally founded but because the prosecution has a duty to disclose such evidence under Brady v Maryland, supra, whether discovery procedures exist or not.
With the growth of concern about undue jury contamination from inadmissible evidence, discovery has the peripheral benefit of allowing a party to consider not only the authenticity of his opponent’s evidence but also its admissibility as a matter of law and to raise such questions by pretrial motion in limine.
If there really were some right to be free from surprise, the courts could never cope with the situation where evidence turns up for the first time during the course of trial. In a criminal case, would the court have to conduct a due diligence hearing comparable to those involving nondisclosure or nonproduction of res gestae witnesses? That "surprise” in itself is not a basis for excluding evidence may be seen from the countless cases holding that it is not a violation of a discovery order to use evidence of which the prosecution was not aware until trial, e.g., n 10 and United States v Levine, 700 F2d 1176 (CA 8, 1983); Martin v State, 482 So 2d 1272 (Ala Crim App, 1985); People v Priest, 672 P2d 539 (Colo App, 1983); Johnson v State, 461 So 2d 1385 (Fla App, 1984); Ledesma v State, 251 Ga 487; 306 SE2d 629 (1983); Jacobs v State, 436 NE2d 1176 (Ind App, 1982); State v Williams, 448 So 2d 659 (La, 1984); State v Kanniainen, 367 NW2d 104 (Minn App, 1985); State v Brown, 306 NC 151; 293 SE2d 569 (1982), cert den 459 US 1080; 103 S Ct 503; 74 L Ed 2d 642 (1982); Commonwealth v Starks, 450 A2d 1363 (Pa Super, 1982); State v Babbitt, 457 A2d 1049 (RI, 1983); State v Crabtree, 655 SW2d 173 (Tenn Crim App, 1983).
So, other than Pace and Turner, and State v Mitchell and Long v State (noted in n 16, supra), the rule is that a defendant cannot be "surprised” or prejudiced by the use of evidence of which he has actual knowledge, e.g., (1) his own words, documents or acts, United States v Draiman, 784 F2d 248 (CA 7, 1986); Terry v State, 9 Ark App 38; 652 SW2d 634 (1983); Hancock v State, 158 Ga App 829; 282 SE2d 401 (1981); State v King, 311 NC 603; 320 SE2d 1 (1984); Gregg v State, 662 P2d 1385 (Okla Crim App, 1983); State v Parry, 684 SW2d 441 (Mo App, 1984), People v Lynn, n 15, supra; or (2) evidence of which he has knowledge from other sources, Huffman v State, 472 So 2d 469 (Fla App, 1985); People v Moore, 115 Ill App 3d 266; 71 Ill Dec 167; 450 NE2d 855 (1983); People v Knighton, 436 So 2d 1141 (La, 1983), cert den 465 US 1051; 104 S Ct 1330; 79 L Ed 2d 725 (1984); Collins v State, 251 Ga 521; 307 SE2d 496 (1983); Castleberry v Crisp, 414 F Supp 945 (ND Okla, 1976). A similar conclusion was reached in People v Acosta, 153 Mich App 504; 396 NW2d 463 (1986), involving the nondisclosure of the identity of a confidential informant whose identity was in fact known to the defendant.
The conclusion is even extended to cases involving evidence which is a matter of public record, Conklin v State, 254 Ga 558; 331 SE2d 532 (1985), cert den — US —; 106 S Ct 606; 88 L Ed 2d 584 (1985), reh den — US —; 106 S Ct 1252; 89 L Ed 2d 359 (1986); Beeson v State, 651 SW2d 944 (Tex App, 1983), and evidence which the defendant should have known would be offered, United States v Montoya, 716 F2d 1340 (CA 10, 1983); Terry v State, 9 Ark App 38; 652 SW2d 634 (1983); State v Sykes, 628 SW2d 653 (Mo, 1982); State v Thibeault, 131 Ariz 192; 639 P2d 382 (Ariz App, 1981).
Discussing remedies, see also United States v Rodriguez, 765 F2d 1546 (CA 11, 1985); United States v Gee, 695 F2d 1165 (CA 9, 1983); United States v Friedman, 107 FRD 736 (ND Ohio, 1985); O’Neill v State, 675 P2d 1288 (Alaska App, 1984); Harris v State, 12 Ark App 181; 672 SW2d 905 (1984); In re Jesse L, 131 Cal App 3d 202; 182 Cal Rptr 396 (1982); Mendibles v Superior Court, 162 Cal App 3d 1191; 208 Cal Rptr 841 (1984); State v Festo, 181 Conn 254; 435 A2d 38 (1980); State v Del Gaudio, 445 So 2d 605 (Fla App, 1984), lv den 453 So 2d 45 (1984); Peterson v State, 465 So 2d 1349 (Fla App, 1985); Pittman v State, 172 Ga App 22; 322 SE2d 71 (1984); People v Davis, 130 Ill App 3d 41; 85 Ill Dec 19; 473 NE2d 387 (1984); State v Winter, 238 Kan 530; 712 P2d 1228 (1986); State v Clark, 446 So 2d 293 (La, 1984); Commonwealth v McGann, 20 Mass App 59; 477 NE2d 1075 (1985); State v Vaughn, 361 NW2d 54 (Minn, 1985); People v Napierala, 90 AD 2d 689; 455 NYS2d 862 (1982); State v Adams, 67 NC App 116; 312 SE2d 498 (1984); Commonwealth v Woodall, 344 Pa Super 487; 496 A2d 1210 (1985); State v Laureano, 101 Wash 2d 754; 682 P2d 889 (1984).
The claim is without merit. The evidence in question was extrinsic evidence of a prior inconsistent statement offered for impeachment. Extrinsic evidence to impeach is, by its nature, rebuttal evidence. Defendant’s prior inconsistent statement, unlike the admission against interest in Bennett, was both immaterial and inadmissible hearsay until after defendant’s testimony.
Williams requires for good cause that the party (1) have a legitimate reason for (2) asserting a constitutional right, and that he be diligent in that (3) the reason not arise from his own neglect and (4) he not have been responsible for prior adjournments.
People v Wilson, 397 Mich 76; 243 NW2d 257 (1976).
MCR 2.503(C), reenacting GCR 1963, 503, is but the latest embodiment of a formal rule designed to deal with the problem of the last minute plea for continuance. See Michigan Court Rule 36 (1945). People v Anderson, 53 Mich 60; 18 NW 561 (1884), involving 1853 Circuit Court Rule 55.
Accord, People v Collier, 16 Mich App 695; 168 NW2d 623 (1969); People v Masonis, 58 Mich App 615; 228 NW2d 489 (1975); People v Floyd, 71 Mich App 462; 248 NW2d 586 (1976).
The absent witness would have testified, as had other defense witnesses, that at about the time of the sale of the stolen truck, he had been at defendant’s home and had not seen any truck on the property.
MCL 769.26; MSA 28.1096 provides:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, 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. | [
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Per Curiam.
Following a jury trial, defendant was convicted of assault with intent to rob while armed, MCL 750.89; MSA 28.284, two counts of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to a term of from eight to thirty years in prison for the assault with intent to rob conviction. Sentences of from two and one-half to ten years in prison were imposed on each of the assault with intent to do great bodily harm convictions. These three sentences were to run concurrently. A mandatory two-year consecutive sentence was imposed for the felony-firearm conviction. Defendant now appeals as of right, raising five claims of error._
On the evening of July 8, 1984, sixteen-year-old Toie Smith, was hosting a party in the backyard of her parents’ home in Detroit. At approximately midnight, a group of seven or eight young people, including Sonya Walton, Ronald Alex and Arlene Bankhead, left the party on foot. They were subsequently accosted by defendant and two other men, one of whom was later identified as Tyrone Vincent. Defendant attempted to force one young man in the group to give up his jacket. Defendant also put a gun in Ronald Alex’s face and struck him, sending Alex’s glasses flying into the street. Defendant and Vincent then approached Michael Grafton and Alicia Leonard who were returning to the party on a moped. Either defendant or Vincent grabbed the moped and struck Leonard in an attempt to stop the moped. Leonard got off the moped and ran to the house where the party was being held. Michael Grafton testified that Vincent struck him, and that the defendant ordered him off the moped and pointed a gun at him. Defendant fired one shot in the air. Michael Grafton then released his hold on the moped and Vincent got on. A struggle ensued between Michael Grafton and Vincent. Tony Grafton, who had been assisting at the party, heard someone scream that his cousin Michael Grafton was being threatened with a gun. Tony Grafton grabbed a baseball bat and went into the street. Michael Grafton released Vincent when he saw his cousin. The defendant then shot Michael Grafton. Defendant also fired three shots at Tony Grafton, but missed. Defendant, Vincent and the third man (Tony Kiler) then fled in Kiler’s car. The defendant was arrested at his home a few hours later.
At trial, defendant related a different scenario of the events on the evening in question. The defendant testified that when he left the party seven or eight men followed him. A. general melee ensued in which bats, bricks, and bottles were thrown. He claimed that shots were fired by a man standing behind him. Then he, Vincent, and Kiler escaped in Kiler’s car.
i
Defendant first claims that the trial court erred by allowing the prosecutor to impeach the defendant with evidence of his prior conviction because the prosecution did not move for admission of the evidence before the defendant took the stand. Defendant relies on People v Ash, 128 Mich App 265, 268-269; 340 NW2d 646 (1983), in which 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).
In the instant case, the prosecutor informed defense counsel, prior to defendant’s taking the stand, that she intended to impeach defendant with evidence of the prior conviction and asked whether defense counsel would move to suppress. Defense counsel did not respond. When the prosecutor began to question defendant about his prior conviction on cross-examination, defense counsel immediately objected, citing Ash. A hearing was then held outside the presence of the jury. The trial court complied with MRE 609(a)(2) by weighing the probative value of evidence of the prior conviction with its prejudicial effect and decided to allow the admission of the evidence.
A review of the facts in Ash reveals that defense counsel was unaware of the prosecutor’s intent to use the defendant’s prior conviction to impeach until after the defendant had taken the stand, while in the instant case, defense counsel knew that the prosecutor intended to impeach defendant with his prior convictions; yet, defense counsel failed to move to suppress. 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 the 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 his ruling on the prosecutor’s motion to admit evidence of a prior conviction until after the defendant testified. The trial court decided that his ruling on the motion was dependent upon 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; 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 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 defendant’s taking the stand because the trial judge had specifically indicated he would not rule on the admissibility of the prior conviction until he had heard 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 court may not reserve its ruling on admissibility of evidence of prior convictions depending on 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 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. No error requiring reversal was committed.
n
Next, defendant argues that the trial court committed error by failing to instruct the jury on specific intent. We disagree. In felonious assault cases the jury must be instructed that the defendant must have possessed either an intent to injure the victim or an intent to put the victim in reasonable fear or apprehension of immediate battery. People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979). In People v Yarborough, 131 Mich App 579, 581; 345 NW2d 650 (1983), where defendant had been convicted of felonious assault, this Court held that failure to give an instruction on specific intent was not an error requiring reversal when the jury had been instructed on the requisite intent. "Even where requested the refusal to give the specific intent instruction has been found to be harmless where the jury was properly instructed on the requisite intent.” Yarborough, supra, p 581, citing People v American Medical Centers of Michigan, Ltd, 118 Mich App 135, 153-154; 324 NW2d 782 (1982).
In the instant case, similar to Yarborough, the trial judge, in instructing on an assault with intent to do great bodily harm, instructed the jury that defendant must have intended to do great bodily harm. Further, the instructions given on felonious assault included both prongs required in Joeseype Johnson, supra. We find that the instructions given adequately informed the jury of the requisite specific intent. The trial court’s refusal to give the specific intent instruction was not error requiring reversal.
hi
Defendant also argues that his case should be remanded for resentencing because the trial judge inaccurately calculated the minimum sentence range under the sentencing guidelines by assigning too high a score to certain sentencing variables. We do not agree that defendant is entitled to resentencing.
In the instant case, although defendant and defense counsel were afforded an opportunity to review the sentence information report (sir), neither defendant nor defense counsel objected to the scoring of the variables or to the minimum sentence range as calculated under the guidelines. We conclude that defendant has waived his right to challenge the scoring in the report. When the sir is available to defendant and defense counsel prior to sentencing, defendant must challenge the accuracy of the report prior to the imposition of sentence or, at least, prior to appeal. People v Jones, 147 Mich App 292, 294; 382 NW2d 772 (1985), lv den 425 Mich 866 (1986). See also People v Kennie, 147 Mich App 222; 383 NW2d 169 (1985), and People v Jannifer Williams, 147 Mich App 1; 382 NW2d 191 (1985).
iv
In his fourth claim of error, defendant makes a general challenge to the sufficiency of the evidence presented at trial. In reviewing a claim based upon the sufficiency of the evidence, this Court must consider all the evidence presented in a light most favorable to the prosecution. A verdict should be affirmed on appeal if a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Swinford, 150 Mich App 507, 511-512; 389 NW2d 462 (1986); People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den sub nom Michigan v Hampton, 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980).
Extensive discussion of this issue is not warranted. We have reviewed the overwhelming proofs presented at trial, and conclude that defendant’s convictions were amply supported by the evidence.
v
Finally, defendant claims that he was denied effective assistance of counsel at trial. In People v Garcia, 398 Mich 250, 264-266; 247 NW2d 547 (1976), our Supreme Court set forth the following standard to be used in reviewing ineffective assistance of counsel claims: Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law. Even if this standard is met, defendant may also have been denied a fair trial if his attorney made a mistake so serious that "but for” that mistake, defendant would have had a reasonably likely chance of acquittal.
In the instant case, defendant claims that defense counsel failed to investigate and call to testify two witnesses who could have corroborated defendant’s story. In support of his claim of ineffective assistance of counsel, defendant offers the affidavit of the two possible witnesses, Phillip Smith and Tyrone Vincent.
The decision of whether to call a witness to testify is a matter of trial strategy. People v Simmons, 140 Mich App 681, 685; 364 NW2d 783 (1985). Defendant is entitled to relief only in those instances where counsel’s failure to call a witness deprives defendant of a substantial defense. Id. In the instant case, we find that defendant was not deprived of a substantial defense by counsel’s failure to call the two witnesses in question. The affidavit of Phillip Smith, disc jockey at the party, neither contradicts nor specifically supports defendant’s case. Further, while the affidavit of Tyrone Vincent indicates that his testimony would likely have corroborated that of the defendant, Vincent’s credibility was in question as he was heavily implicated in the incident through the testimony of prosecution witnesses. Under these circumstances, we find that defendant was not denied effective assistance of counsel by defense counsel’s failure to call the two witnesses in question.
Affirmed.
Bronson, P.J., did not participate. | [
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Per Curiam.
Defendant appeals from a January 16, 1986, order of summary disposition by the Oakland Circuit Court in favor of plaintiff Fireman’s Fund Insurance Company.
Effective March 5, 1978, plaintiff issued various insurance policies to defendant Harold Turner, Inc. (hti), an automobile dealership. The policies were cancelled on July 16, 1979, for nonpayment of premiums. During the period in which the policies were in effect, hti submitted claims which plaintiff paid. The instant action was instituted on February 1, 1983, in an effort to collect the unpaid premiums, which totaled $54,625.
There is no dispute that hti did not pay the earned premiums. The sole issue is whether Richard and Joanne Turner, directors and shareholders of hti, may be held personally liable for the corporate debt. Hti is no longer collectible. Its assets were sold to Dean Sellers, Inc., on June 30, 1980. At the time of sale, a bulk sale affidavit was prepared and executed by Richard Turner. It stated that all debts of hti had been paid in full. After hti’s debts had been paid, approximately $650,000 of the sale proceeds remained. This sum was distributed to Richard and Joanne Turner in January, 1981. Plaintiff was not listed as a creditor in the bulk sale affidavit nor were any of the sale proceeds distributed to plaintiff. On February 18, 1981, hti filed a certificate of dissolution with the Michigan Department of Commerce. However, the department did not approve the certificate until October 29, 1982, when a dispute concerning outstanding taxes of hti was finally resolved.
Richard and Joanne Turner’s defense was that neither of them was aware of the outstanding debt until August, 1982, when Richard Turner received notice from plaintiffs counsel that suit would be commenced if the bill was not paid. Turner testified at his deposition that he did not become involved in the payment of hti’s bills unless a creditor contacted him directly. It is undisputed that, seven days after plaintiff cancelled the various policies for nonpayment of funds, Richard Turner wrote a letter to an agent of Firemen’s Fund, requesting that hti’s coverage with plaintiff be cancelled.
The responsibility to oversee the payment of corporate bills was that of Linda Hightower, hti’s business manager. Ms. Hightower acknowledged at her deposition that she remembered receiving one bill from plaintiff in the latter part of 1980. However, she testified that when she received the bill she believed there was nothing owing on the policy and contacted hti’s insurance agent for an explanation. The agent told her he would check into the matter but never called her back. In contrast to Ms. Hightower’s deposition testimony, plaintiff asserts that several billings were sent to hti. The above indicates that a factual dispute exists as to when defendants Richard and Joanne Turner became aware of the existence of hti’s debt to plaintiff.
The circuit court granted summary disposition, MCR 2.116(0(10), in favor of plaintiff, finding the distribution of hti’s assets to Richard and Joanne Turner was a fraudulent conveyance under MCL 566.14; MSA 26.884 and an illegal dividend under the Michigan Business Corporation Act, MCL 450.1101 et seq.; MSA 21.200(101) et seq.
Defendants first argue that a proceeding under the Uniform Fraudulent Conveyance Act, MCL 566.11 et seq.; MSA 26.881 et seq., is an equitable proceeding and that circuit courts do not have equity jurisdiction when there is an adequate remedy at law. Defendants assert that the Business Corporation Act provides an adequate remedy.
To recover under the Business Corporation Act, plaintiff would have to prove that defendants as directors breached the standard of conduct set forth in MCL 450.1541; MSA 21.200(541), which only holds defendants to the diligence, care and skill of an ordinarily prudent person. MCL 450.1834(a); MSA 21.200(834)(a). To recover from defendants as shareholders, plaintiff would have to prove defendants received distribution of hti’s assets "with knowledge of facts indicating that it was not authorized . . . .” Neither of these provisions afford plaintiff as great an opportunity for relief as does § 4 of the ufca, which only requires proof of a transfer rendering the person insolvent without fair consideration.
A legal remedy cannot be said to give full and ample relief if its mode for obtaining relief is not as effectual as that which equity affords. Powers v Fisher, 279 Mich 442, 447; 272 NW 737 (1937). Equity has jurisdiction whenever it provides advantages not obtainable at law. Id., 448. We conclude that the Business Corporation Act does not provide an ample alternate remedy.
Defendants also argue that the Business Corporation Act provides a specific remedy and thus supersedes "any implied remedy which may be available under the Uniform Fraudulent Conveyance Act.” This rule of statutory construction is inapplicable where there is no conflict between the statutes. Woll v Attorney General, 409 Mich 500, 516; 297 NW2d 578 (1980). Section 551 of the Business Corporation Act begins with the clause "Zh addition to any other liability imposed by this act or other law . . . MCL 450.1551; MSA 21.200(551). Thus, the two statutes at issue are not inconsistent.
Defendants also argue that unresolved factual disputes preclude a grant of summary disposition. However, the factual disputes defendants assert exist arise under § 5 of the ufca. In the instant case plaintiff relies upon § 4. Section 4 provides:
Sec. 4. Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration.
The distribution of hit's assets was unquestionably a conveyance of property from hti to the Turners. It is equally apparent that fair consideration was not exchanged. More difficult is the question of whether the transfer rendered hti insolvent. MCL 566.12(1); MSA 26.882(1) provides that a person is insolvent "when the present fair salable value of his assets is less than the amount that will be required to pay his probable liability on his existing debts as they become absolute and matured.” We do not read the phrase "probable liability” as an implication that the debtor must be aware of existing debts. Such a definition would require an exploration of defendants’ inner thoughts and largely defeat the purpose of § 4, which, as quoted above, applies "without regard to actual intent.” Moreover, regardless of whether a debtor has or does not have knowledge of existing debts, creditors are equally harmed by conveyances of a debtor’s assets when the debtor receives little, if anything, of value in return.
In the instant case, the unpaid premiums were "existing debts” at the time of the distribution and the distribution left hti without resources. We conclude as a matter of law that the transfer rendered hti insolvent. Thus, an application of the law to the undisputed facts indicates that the trial court properly granted summary disposition pursuant to § 4 of the ufca.
Defendants also argue that the trial court erred by reconsidering an earlier ruling, at which time it initially denied plaintiff’s motion for summary disposition. Defendants would have this Court hold that a trial court, having once ruled on an issue, must proceed to trial even if the court later becomes convinced that one of the parties is entitled to judgment as a matter of law and that the earlier ruling was erroneous. Defendants’ argument is without merit. MCR 2.604 affords a court discretion to modify any form of decision prior to final judgment.
In light of our disposition, it is unnecessary to determine whether summary disposition was properly granted under the Business Corporation Act.
Affirmed.
After the sale of hti, Linda Hightower held the same position with Dean Sellers, Inc., and continued to perform close-out work for hti. | [
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] |
D. A. Roberson, J.
Respondent appeals as of right from a March 4, 1985, order of the Muskegon County Probate Court, ordering specific performance of a contract to make a will in favor of petitioner. We affirm.
Frank Linden Fritz died on March 14, 1984, while vacationing on the island of St. Maarten with petitioner and another friend. The decedent died intestate and his halfsister, respondent, was named as the personal representative of his estate. Rules of intestate succession would have governed distribution of the estate but for petitioner’s claim that the decedent orally contracted to make a will naming petitioner as beneficiary of one-half of his estate. Petitioner filed a petition for determination of the existence of a contract to leave property by will on April 16, 1984, seeking specific performance of the contract. A hearing was held on September 10, 1984, at which time testimony was given by petitioner and numerous other witnesses. The trial court granted petitioner specific performance.
The record indicates that decedent and petitioner met in 1978, and petitioner moved into decedent’s residence in North Muskegon in October, 1978. Decedent was an alcoholic and petitioner maintained the household, yard and finances as well as seeing to decedent’s personal needs, such as transportation, haircuts, and other items of personal grooming. Petitioner assisted in remodeling and painting various rooms in decedent’s home as part of maintaining the premises. Petitioner was also employed part-time as a beautician.
Petitioner asserts that, approximately three years into the relationship, decedent promised him one-half of his estate upon his death. The record shows that the relationship between the two men was volatile, and that decedent would often become abusive due to his alcoholism. However, when petitioner attempted to leave the residence, decedent begged him to stay and repeatedly said that everything would be bequeathed to petitioner. Decedent particularly made these promises after the two had been arguing, although he occasionally told petitioner when he became angry and inebriated that he would leave him nothing.
On January 7, 1984, shortly after decedent lost his job due to alcoholism, petitioner and decedent prepared a document setting forth decedent’s wishes upon his death. Among other items, this document states that decedent wanted his estate divided equally between respondent and petitioner. The record shows that petitioner typed the docu ment. There was evidence that the document was taken out of the typewriter and then reinserted for typing of the sentence regarding disposition of the estate. A friend of decedent and petitioner, Thomas Bozell, was present at the time the document was prepared and witnessed it. Petitioner testified that the document was signed after it had been completely typed, and that the document had been reinserted into the typewriter in order to type the dispositionary sentence because the decedent had a difficult time deciding how to divide the items of his estate between petitioner and respondent.
Although this document did not meet the requirements of a will, it was admitted into evidence at the September 10, 1984, hearing as evidence of the contract between petitioner and decedent. When decedent died, petitioner called decedent’s sister from St. Maarten and asked her to remove his personal belongings from the residence.
Friends of petitioner and decedent, Frank Gyori and Thomas Bozell, testified at the hearing. Gyori testified that decedent had mentioned to him that he could not decide whether to leave the house to petitioner and money to respondent, or to sell everything and divide the money equally. Bozell testified that decedent often made the general statement that petitioner would have nothing to worry about when decedent died.
Louise Nelson, the only witness to testify who did not know either of the parties personally, stated that, when she was in decedent’s home conducting an appraisal of the household furnishings, decedent said to petitioner "this will all be yours someday anyway.” Respondent testified that decedent had often assured her that she would receive the house, car and investments. The last such time she heard decedent assure her of this was in February, 1984, just prior to his trip to St. Maarten.
Ida Anderegg, decedent’s neighbor, testified that petitioner and decedent argued often and that, two days prior to the trip to St. Maarten, decedent told her that he would leave petitioner nothing upon his death. Anderegg testified that decedent was like a son to her and her husband, and that decedent had never mentioned his intention to leave petitioner anything when he died.
Isabelle VanderLaan, a friend of respondent, testified that, on the night prior to the trip to St. Maarten, decedent assured her that respondent would inherit his home if he should die. Genevieve Gerling, decedent’s stepsister, testified that decedent had said that he did not wish petitioner to receive anything upon his death, and had never expressed an intention that petitioner should inherit anything. She also testified that decedent had told everyone that they would have a say in the distribution of his furniture and other items in his estate.
Marjorie Frost, another stepsister of decedent, testified that between the 6th and 8th of January, 1984, decedent stated to her that he wanted petitioner to move out of the residence when they returned from their trip to St. Maarten, and that he did not want petitioner to inherit anything.
Respondent claims on appeal that the trial court erred in finding that a contract to leave property by will existed between petitioner and decedent. Petitioner asserts that the document composed by decedent and petitioner, while ineffective as a testamentary document, was a writing signed by the decedent evidencing the existence of a contract in accord with MCL 700.140; MSA 27.5140. Section 140 provides:
(1) A contract to make a will or devise, not to revoke a will or devise, or to die intestate, if executed after the effective date of this act, can be established only by 1 of the following:
(a) A provision of a will stating material provisions of the contract.
(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.
(c) A writing signed by the decedent evidencing the contract.
(2) The execution of a joint will or mutual wills does not give rise to a presumption of a contract not to revoke the will or wills.
We agree with the trial court that the document prepared by decedent was sufficient evidence of the parties’ contract as required by § 140. While there appear to be no cases directly on point, judicial construction of a similar statute of frauds provision in the Uniform Commercial Code, MCL 440.2201; MSA 19.2201, is instructive.
Like § 140, MCL 440.2201; MSA 19.2201 renders certain contracts unenforceable absent some writing, signed by the party against whom enforcement is sought, sufficient to indicate that a contract has been made. The requirement does not mean that the entire contract must be embodied in the writing. Rather, so long as the document indicates the existence of a contract, parol evidence may be admitted to prove the terms of the contract. Lorenz Supply Co v American Standard, Inc, 419 Mich 610, 614-615; 358 NW2d 845 (1984); In re Frost Estate, 130 Mich App 556, 559-560; 344 NW2d 331 (1983), lv den 419 Mich 936 (1984). There are no uniform standards to be met to satisfy the statutory requirements, and each case is to be decided on its own facts. Opdyke Investment Co v Norris Grain Co, 413 Mich 354, 368; 320 NW2d 836 (1982).
In the instant case, the decedent prepared a document that, while not satisfying the statutory criteria for testaments, readily demonstrated his intent to bequeath one-half of his estate to petitioner. This was written evidence, signed by the decedent, of the contract now asserted by petitioner.
As was recognized by the trial court, however, satisfaction of § 140 alone does not mandate enforcement of the purported contract. By itself, the decedent’s document does not prove the contract. In re Cramer’s Estate, 296 Mich 44, 48; 295 NW 553 (1941). One seeking specific performance of a contract to leave property by will has the burden of proving the contract. In re Cramer’s Estate, supra, 47; Kraus v Vandevanter, 237 Mich 168, 171; 211 NW 95 (1926). Thus, petitioner was required to prove clearly and convincingly an actual express agreement, and not a mere unexecuted intention. Teason v Miles, 368 Mich 414, 417-418; 118 NW2d 475 (1962).
To establish the existence of a contract, petitioner was required to prove that decedent offered to make a will leaving petitioner a portion of his estate if petitioner lived with and cared for him, that petitioner accepted this exchange and that petitioner’s services constituted consideration given in return for decedent’s promise. Petitioner testified that, approximately three years after petitioner had moved into decedent’s home, decedent promised to bequeath petitioner part of his estate. He testified that when decedent became abusive because of his alcoholism, and petitioner prepared to leave the residence, decedent would beg him to stay and would express his intention to name petitioner as a beneficiary when he died.
While some of the testimony was conflicting, the trial court conscientiously addressed the witnesses’ credibility and resolved it in favor of petitioner. We give special deference to the trial court’s findings when they are based on the credibility of the witnesses. Kroll v Crest Plastics, Inc, 142 Mich App 284, 288; 369 NW2d 487 (1985), lv den 423 Mich 859 (1985). We agree that the evidence was sufficient to show that petitioner rendered the consideration of staying in the house and continuing to care for the decedent in exchange for the decedent’s promise to bequeath one-half of his estate to petitioner. See, Teason v Miles, supra, 419. Accordingly, the trial court’s decision is affirmed. | [
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Per Curiam.
Plaintiff appeals from an order of summary disposition by the Wayne Circuit Court, holding that plaintiff was not entitled to receive disability pension benefits.
Plaintiff began working for Presto Trims in 1967 as a carpét cutter. In 1979, muscular dystrophy rendered plaintiff unable to perform his work. For purposes of social security benefits, plaintiff was adjudged to be totally and permanently disabled.
On September 6, 1979, plaintiff applied to defendant Central States, Southeast and Southwest Areas Pension Fund for a permanent disability pension. On January 2, 1980, plaintiff’s claim for benefits was denied on the ground that the collective bargaining agreement under which plaintiff was employed did not provide for a sufficient level of contributions to qualify plaintiff for permanent disability pension benefits.
On Augrist 2, 1983, plaintiff filed the instarit complaint, seeking a judgment requiring defendant to pay the pension benefits to which he claimed he was entitled. We read the single-count complaint as alleging three arguably separate grounds for recovery: that benefits were due under the express terms of the contract, that defendant had breached its fiduciary duty, and that defendant was es-topped from denying benefits.
On October 10, 1985, the trial court entered an order granting summary disposition in defendant’s favor. The court found that the express terms of the pension plan did not provide for benefits,* that exclusive jurisdiction to hear the breach of fiduciary duty claim lay in the federal courts, and that plaintiff was not entitled to claim estoppel under federal law.
On appeal, plaintiff only raises issues concerning his claim that defendant is estopped from denying benefits. We hold that claims of estoppel, when brought to collect benefits from a pension plan governed by the Employment Retirement Income Security Act (erisa), 29 USC 1001 et seq., fall within the exclusive jurisdiction of the federal courts and may not be entertained in state courts. Accordingly, the circuit court erred in considering the merits of plaintiff’s claim of estoppel.
The parties agree that the pension plan now before us is subject to the provisions of erisa. Erisa is a comprehensive statute through which Congress intended to establish standards of conduct, responsibilities, and obligations for fiduciaries administering pension plans. 29 USC § 1001(b). Erisa broadly preempts state law. As this Court recently observed:_
Erisa contains a very broad preemption provision. With exceptions not relevant herein, congress declared that erisa "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by erisa. 29 USC 1144(a). The same section later defines "State law” to include "all laws, decisions, rules, regulations, or other State action having the effect of law . . . .” 29 USC 1144(c)(1). There is no exaggeration in the observation that erisa contains the "most sweeping preemption statute ever enacted.” Authier v Ginsberg, 757 F2d 796, 801, n 8 (CA 6, 1985). [Teper v Park West Galleries, Inc, 153 Mich App 520, 522; 396 NW2d 210 (1986).]
See also Alessi v Raybestos-Manhattan, Inc, 451 US 504; 101 S Ct 1895; 68 L Ed 2d 402 (1981), and Shaw v Delta Air Lines, Inc, 463 US 85; 103 S Ct 2890; 77 L Ed 2d 490 (1983).
In addition to the broad preemption clause, Congress also awarded federal district courts exclusive jurisdiction of civil claims brought pursuant to the provisions of erisa. 29 USC 1132(e)(1). The one exception is where the action is brought pursuant to 29 USC 1132(a)(1)(B)
to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan ....
If an action is brought pursuant to the above provision, state courts have concurrent jurisdiction with the federal courts. 29 USC 1132(e)(1).
In the instant case, the trial court held that plaintiff was not entitled to pension benefits under the express terms of the plan. Such a claim is an example of the type of action which may be brought pursuant to the state concurrent jurisdiction provision. However, as noted previously, plaintiff has not appealed that portion of the lower court’s ruling. Rather, on appeal, plaintiff argues that he is entitled to benefits under principles of equitable estoppel and that the trial court erred when it denied him benefits on these grounds. While erisa authorizes a beneficiary to bring an action based on equitable grounds, the authorization for such an action is found at 29 USC 1132, subsection (a)(3), not subsection (a)(1)(B). As indicated previously, state courts have concurrent jurisdiction only for actions brought under the latter subsection. Thus, the trial court did not have jurisdiction to entertain plaintiff’s claims of estoppel.
Public policies and concerns which gave rise to the enactment of erisa support our decision. Theories of estoppel present potential dangers to the solvency of pension plans. If employees are permitted to collect benefits from a fund to which insufficient contributions have been made on their behalf, the actuarial soundness of the plan could be threatened. Phillips v Kennedy, 542 F2d 52, 58 (CA 8, 1976). Such claims may not be Considered alone: the rights and interests of the other pensioners must also be taken into account. Aitken v IP & GCU Employer’s Retirement Fund, 604 F2d 1261 (CA 9, 1979). While we express no opinion as to whether claims of estoppel should be permitted in such cases, the fact that such theories present potential dangers is evidence that such claims belong in the federal courts. Congress included a broad preemption clause and created exclusive jurisdiction with few exceptions in part because it wanted to eliminate the threat of conflicting and inconsistent state and local regulation. Shaw v Delta Air Lines, supra, 463 US 99. Reading 29 USC 1132(e)(1) narrowly advances that goal.
We also note that plaintiff’s theory of equitable estoppel is based on an allegation that defendant either failed to inform or misinformed plaintiffs union bargaining agent as to the benefit class that would be necessary to provide disability benefits. This theory is closely akin to a claim of breach of fiduciary duty. Actions based on breach of fiduciary duty are subject to the exclusive jurisdiction of the federal courts. 29 USC 1109 and 1132(e)(1); House Conference Report No. 93-1280, 1974 US Code Cong & Ad News, 4639, 5106-5107; Retail Shoe Health Comm v Reminick, 62 NY2d 173; 476 NYS2d 276; 464 NE2d 974 (1984). If estoppel claims could be entertained in state courts, the rule of exclusive federal jurisdiction for fiduciary duty claims could be too easily circumvented.
Our. decision also finds support in Young v Sheet Metal Workers’ International Ass’n, 112 Misc 2d 692; 447 NYS2d 798 (1981). In Young, the court found that the phrase in 29 USC 1132(a)(1)(B) "under the terms of the plan” must be read restrictively and that an equitable action which calls into question fiduciary conduct raises issues beyond the scope of the plan itself and removes the action from state court jurisdiction. 447 NYS2d 803. To vest state courts with such jurisdiction, the court found, "would substantially undermine a carefully structured legislative scheme.” 447 NYS2d 804.
Accordingly, the trial court’s determination of the merits of plaintiffs estoppel claim is heréby reversed. Since courts of this state have no jurisdiction to entertain actions against a fiduciary of a pension fund based on claims of estoppel, that portion of the trial court’s opinion and order is without res judicata effect. That portion of the lower court’s ruling which found that plaintiff was not entitled to collect benefits "under the terms of the plan” was not appealed and remains in full force and effect.
Affirmed in part and reversed in part; no costs, neither side prevailing in full.
Under the pension plan, an employee is eligible for total and permanent disability pension benefits only if he meets certain criteria. One criterion was that his employer must have made contributions on his behalf pursuant to a collective bargaining agreement in amounts "at least equivalent to those required by benefit class 4, 5, 6, or-7.” The pension plan set forth the level of weekly contributions necessary to qualify for each benefit class. The higher the benefit class, the higher was the required amount of the employer’s weekly contributions. The collective bargaining agreement under which plaintiff was employed required weekly contributions at a level equivalent to benefit class 2 and therefore defendant was ineligible to receive permanent pension benefits.
The House Conference Report provides in pertinent part:
The U.S. district courts are to have exclusive jurisdiction with respect to actions involving breach of fiduciary, responsibility as well as exclusive jurisdiction over other actions to enforce or clarify benefit rights provided under title I. However, With respect to suits to enforce benefit rights under the plan or to recover benefits under the plan which do not involve application of the title I provisions, they may be brought not only in U.S. district courts but also in State courts of competent jurisdiction. [1974 US Code Cong & Ad News 5107.] | [
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Allen, J.
Once again plaintiff township returns to this Court in its longstanding effort to preclude the operation of a solid waste landfill within plaintiff’s boundaries in Chippewa County. On this occasion, plaintiff appeals from a November 15, 1985, order of the Chippewa Circuit Court denying plaintiff’s motions for preliminary injunctions and dismissing plaintiff’s complaint alleging violations of the Solid Waste Management Act, MCL 299.401 et seq.; MSA 13.29(1) et seq., and rules promulgated under that act. Plaintiffs prior attempt to set aside a construction permit issued to defendants Reid and to enjoin the operation of the landfill on grounds that it would be likely to pollute, impair or destroy the single source aquifer in the Dafter Township area was rejected by this Court in Dafter Twp v Reid, 131 Mich App 283; 345 NW2d 689 (1983), lv den 419 Mich 903 (1984).
In August, 1980, the Eastern Upper Peninsula Regional Planning and Development Commission commenced drafting a twenty-year waste management plan for Mackinac, Chippewa and Luce Counties. In September, 1983, prior to the final approval of the tri-county plan, defendants Reid, owners of 43.6 acres of land in Dafter Township, were issued a license by defendant Department of Natural Resources to operate a Type n landfill. About the same time, the City of Marquette, which from 1940 to the early 1980’s had operated a landfill within its own limits, was required by the dnr to close its landfill operation because of the disposal of several thousand gallons of fuel oil in 1973. Because a solid waste disposal plan for Marquette County as required by the Solid Waste Management Act was not yet formulated, the city was forced to make temporary arrangements for the disposal of its refuse. Accordingly, the city procured the construction of a compacting and transfer station so as to be able to transport refuse out of the area and entered into a contract with defendants Reid for the disposal of city garbage on the Reids’ property. The Reids’ landfill is 165 miles east of Marquette.
In February, 1985, when Marquette first commenced sending its garbage to the Reids’ landfill, plaintiff filed a complaint to enjoin the importation of the city’s waste. On March 22, 1985, plaintiff filed a first amended complaint. Count I alleged that the City of Marquette was importing solid waste into Chippewa County for disposal at the Reids’ landfill in violation of the solid waste management plan for Chippewa, Mackinac and Luce Counties (the tri-county area). Count I further alleged that no provision was made for Marquette in the solid waste management plans of either Marquette County, where the City of Marquette is located, or the tri-county area, thus entitling plaintiff to injunctive relief pursuant to MCL 299.433; MSA 13.29(33). Count ii alleged that hazardous waste was dumped in the Reids’ landfill in violation of both the Solid Waste Management Act, MCL 13.29(1); MSA 299.401, and the Hazardous Waste Management Act, MCL 299.501 et seq., MSA 13.30(1) et seq. Count in alleged that the Reids had violated various operating rules promulgated pursuant to the Solid Waste Management Act. Plaintiff also filed a petition for a preliminary injunctive order pursuant to MCR 3.310, based on allegations set forth in Counts i and n of the first amended complaint.
At a hearing held in Munising on March 28, 1985, acting Chippewa Circuit Judge Charles H. Stark elected to make findings of fact as to Count i which pertained to the importation issues raised in plaintiffs complaint. The court assumed the truth of all factual allegations in the first amended complaint and determined that disposal of solid waste without prior inclusion of the waste generator in the solid waste management plan would violate 1982 AACS, R 299.4711(e)(iii)(C). However, the court concluded that, since the Reids and Marquette executed their contract and the Reids received their license from the dnr prior to the dnr’s approval of the tri-county area plan, the plan could not operate to exclude Marquette’s waste disposal. Summary judgment in favor of defendants was granted on Count i. A hearing on Counts ii and in was adjourned, and the parties were ordered to submit briefs addressing the issue of whether state regulation preempted plaintiffs suit.
On April 18, 1985, and April 24, 1985, respectively, plaintiff filed a notice of taking deposition and an amended notice of taking deposition. On April 24, 1985, the Reids filed a motion to arrest discovery pursuant to MCR 2.119, requesting that discovery be stayed since the court’s decision on the preemption issue could resolve the case without the need for further discovery. On May 9, 1985, the court entered an order granting the Reids’ motion until the court resolved the legal issues pertaining to Counts n and in. On June 28, 1985, plaintiff filed a motion for entry into the Reids’ landfill for an inspection, a petition to amend its complaint, and a motion to open discovery.
On July 12, 1985, plaintiff filed its second amended complaint against the Reids, Marquette, and the dnr. Count i alleged importation of solid wastes for disposal in the Reids’ landfill from sources other than Marquette in violation of 1982 AACS, R 299.4711(e)(iii)(C), i.e., for failure to obtain inclusion in the tri-county area solid waste management plan. Count ii alleged violations of MCL 299.407; MSA 13.29(7) and regulations promulgated pursuant to the Solid Waste Management Act by the disposal of hazardous waste in the Reids’ landfill. Count in alleged various operational violations of Solid Waste Management Act rules. Injunctive relief was requested.
On July 23, 1985, the court entered an order granting plaintiff leave to amend its complaint, permitting plaintiff to have an inspection of the Reids’ landfill, and barring all discovery except by way of interrogatories. Plaintiff’s inspection took place on August 15 and 16, 1985.
On August 2, 1985, the dnr filed a motion for summary disposition pursuant to MCR 2.116(C)(8).
On August 27, 1985, plaintiff township filed (1) a motion for a preliminary injunction prohibiting importation of solid waste to the Reids’ landfill from beyond the tri-county area, (2) a motion to open discovery, (3) a motion for a preliminary injunction to prevent the dnr from reviewing the Reids’ operating license, and (4) a motion for a preliminary injunction to close the Reids’ landfill until the Reids secured a disposal source for leach-ate generated by their landfill.
A two-day hearing and taking of testimony on plaintiff’s four motions were held in September, 1985. On November 15, 1985, the trial court issued its opinion and order enjoining the Reids from accepting any further waste or other material unless a new license was issued by defendant the dnr on or before February 20, 1986. Plaintiff’s motion (2) to open discovery and motions (1) and (4) for injunctive relief were denied, and the second amended complaint was dismissed with prejudice. The court also held that the two-year operating license granted the Reids on September 9, 1985, had technically expired and that the Reids were operating without a license and were subject to the penalties of MCL 299.436; MSA 13.29(36).
From the judgment of the trial court plaintiff appeals raising five issues as grounds for reversal of the judgment dismissing plaintiff’s second amended complaint and denying an injunction on the importation of waste from localties outside the tri-county area. Defendants Reid cross-appeal the trial court’s finding that their operating license had expired. We address the issues in a sequence different from that raised by plaintiff.
I. RESTRICTIONS ON DISCOVERY
Plaintiff argues that the trial court unreasonably restricted plaintiff’s ability to obtain discovery under MCR 2.302. Plaintiff took the depositions of three the dnr officials on March 25, 1985, and was in the process of taking the depositions of three other dnr officials when the Reids’ attorney filed a motion to arrest discovery on April 23, 1985, with a hearing set for April 29, 1985. The court signed an order arresting discovery on May 9, and on June 27, 1985, plaintiff moved to open discovery. Following a telephone conference call with Judge Stark on July 9, the court issued an order on July 23, 1985, permitting plaintiff's expert to inspect the Reids’ landfill and allowing the use of interrogatories, but not depositions.
It is plaintiffs contention that its ability to properly prepare its case for the crucial hearings on September 20 and 21, 1985, was severely limited due to the restrictions on discovery. Briefs of the dnr and the City of Marquette do not respond to this issue. Defendants Reid argue that in April, 1985, when it appeared that Dafter’s complaint might be dismissed on the preemption issue, the court had good reason to arrest discovery until the court could resolve that issue and, after discovery was allowed, that plaintiff had approximately two months in which interrogatories could have been taken from any dnr official. We agree with defendants Reid.
MCR 2.302(C) permits the circuit court to limit discovery under the following circumstances:
(c) Protective Orders. On motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following orders:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; _
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; ....
The test for review of orders of a circuit court regarding the scope of discovery is set forth in Masters v City of Highland Park, 97 Mich App 56, 60; 294 NW2d 246 (1980), lv den 409 Mich 937 (1980):
The granting or denial of discovery is within the trial judge’s discretion. ... An underlying consideration must be whether the granting or extension of discovery will facilitate rather than impede the litigation. . . . Factors such as the timeliness of the request, the duration of the litigation and possible prejudice to the litigants should be considered. . . . Unless it will create manifest injustice, after a reasonable length of time a judge should be able to terminate discovery and proceed with trial. [Citations omitted.]
Application of this test to the situation in the instant case discloses no unreasonable restriction on plaintiff’s opportunity to discover. This is not a case where the township was unfamiliar with the disposal site or the operations being conducted thereon or the possibilities of pollution or harm to the environment. In 1981 the plaintiff had filed a complaint seeking to set aside a permit issued to the Reids to construct a Type n solid waste disposal area and to enjoin the operation thereof on grounds that it would be likely to pollute, impair, or destroy the natural resources in the township area. Dafter Twp v Reid, supra. Between February 26, when plaintiff filed suit, and April 23, 1985, when the motion to arrest discovery was filed, plaintiff had two months to take discovery. After the court’s July 23, 1985, order allowing limited discovery, plaintiff had two months to subpoena any employee of the Reids’ landfill for trial on September 20-21. At trial, Edward Reid was called as a witness and plaintiff had the opportunity for cross-examination. Prior to the order arresting discovery, plaintiff took the deposition of the following the dnr personnel: Robert Curry, Unit Supervisor of the Geological Unit of the Hydrogeological Section of the Groundwater Division; David Bachelor, Environmental Enforcement Specialist; Thomas Worki, Supervisor of the Water Quality Division for the Upper Peninsula. At the September 20-21 hearing, plaintiff disclosed that it had reviewed the dnr file in Marquette, and during the hearing various documents from the dnr’s files were introduced into evidence. Given these facts, we are not persuaded that the trial judge improperly limited discovery.
II. INVALID OPERATING LICENSE — REFUSAL TO ENJOIN
The two-year license to operate the landfill was first issued on September 9, 1983. A renewal application with the required $100 fee was received by the dnr on September 9, 1985. Plaintiff contends that the two-year period expired on September 8, 1985. The trial court found that the renewal was timely but, because the Reids had failed to comply with certain rules, found the license had expired and that the Reids were operating without a license. The court indicated that the prosecuting attorney, in his discretion, might bring a criminal charge. Nevertheless, the court declined to enjoin the operation of the landfill immediately. On appeal, plaintiff argues that, once the court found that the Reids were operating without a license, the court erred by not immediately issuing an injunction. Defendants Reid cross-appeal, claiming that the court erred in finding that they were operating without a license.
MCL 299.415(2); MSA 13.29(15)(2) provides:
An operating license shall expire 2 years after the date of issuance and may be renewed upon payment of a renewal application fee of $100.00 if the licensee has complied with this act and the rules promulgated under this act.
The plain wording of the statute that the license expires after two years from the date of issuance refutes plaintiffs claim that the application was submitted to the dnr one day too late. A year means a calendar year. MCL 8.3j; MSA 2.212(10). Two calendar years after the date of issuance is September 10, 1985. Accordingly, we approve the trial court’s refusal to find the renewal untimely.
However, we must also rule upon the validity of the trial court’s decision that the operating license was no longer valid because of the violation of various rules issued under the Solid Waste Management Act. In reaching this decision, the trial judge rejected the application of § 91(2) of the Administrative Procedures Act, MCL 24.291(2); MSA 3.560(191X2), to extend the operating license. MCL 24.291(2); MSA 3.560(191)(2) provides:
When a licensee makes timely and sufficient application for renewal of a license or a new license with reference to activity of a continuing nature, the existing license does not expire until a decision on the application is finally made by the agency, and if the application is denied or the terms of the new license are limited, until the last day for applying for judicial review of the agency order or a later date fixed by order of the reviewing court. This subsection does not affect valid agency action then in effect summarily suspending such license under [MCL 24.292; MSA 3.560(192)]. [Emphasis supplied.]
The operation of a landfill is clearly and indisputably an "activity of a continuing nature” as that term is used in § 91(2) of the Administrative Procedures Act. Clearly, therefore, the otherwise expired license in the instant case retained its effect until the dnr took action reviewing the license prior to September 9, 1985, as ordered by the trial court. Thus, the trial court’s decision that defendants Reid were operating the landfill without a license in violation of MCL 299.413(1); MSA 13.29(13)(1) was error. However, the court’s refusal to grant a temporary injunction was proper, although for the wrong reason. Warren v Howlett, 148 Mich App 417, 426; 383 NW2d 636 (1986).
III. TRIAL COURT’S REFUSAL TO RETAIN JURISDICTION
Plaintiff contends that because the Reids have continuously failed to comply with rules promulgated under the Solid Waste Management Act, and because the dnr has demonstrated an unwillingness to enforce those rules, the circuit court should have fashioned an oversight mechanism to insure that any license renewal granted by the dnr comported with the statute. Specifically, plaintiff asks that the Reids comport with the certification procedures set forth in 1982 AACS, R 299.4313, and that for this purpose the trial court should have retained jurisdiction.
Plaintiff cites no authority for this position in its brief on appeal. Therefore, the issue is not preserved. Three Lakes Ass’n v Whiting, 75 Mich App 564, 578-579; 255 NW2d 686 (1977). Further, we agree with the dnr that the issue is moot, it being conceded at oral argument that the dnr did renew the license.
Finally, on this issue we observé that the certification procedure requested by plaintiff is required only for the initial application for an operating license. MCL 299.413(3); MSA 13.29(13X3).
IV. IMPORTATION — CITY OF MARQUETTE
V. IMPORTATION — OTHER SOURCES OUTSIDE THE TRI-COUNTY AREA
The key issues raised by plaintiff concern the trial court’s refusal to grant injunctive relief, either temporary cr permanent, against the importation of waste from outside the tricounty area. The primary purpose of plaintiff’s complaint was to cut off the flow of waste, particularly the approximately fifty tons per day of garbage from the City of Marquette.
In equity cases, this Court must defer to the trial court’s findings of fact unless it is convinced that it would have reached a contrary result. Kern v City of Flint, 125 Mich App 24, 27; 335 NW2d 708 (1983). See also MCR 2.613(C). The grant or denial of an injunction is committed to the sound discretion of the circuit court. Campau v National Film Co, 159 Mich 169, 172-173; 123 NW 606 (1909); Hayes-Albion Corp v Kuberski, 108 Mich App 642, 657; 311 NW2d 122 (1981), modified 421 Mich 170; 364 NW2d 609 (1984), reh den 421 Mich 1202 (1985). In Wexford Co Prosecutor v Pranger, 83 Mich App 197, 205; 268 NW2d 344 (1978), this Court noted:
As to the question of whether the facts in the within case justify issuance of an injunction^ we note that injunctive relief is an extraordinary remedy which issues only when justice requires and there is not adequate remedy at law, and when there is real and imminent danger of irreparable injury. [Emphasis in original.]
In Wagner Electric Corp v Hydraulic Brake Co, 269 Mich 560, 565; 257 NW 884 (1934), the Court stated:
In theory, an injunction is issued for the purpose of preventing irreparable mischief; and it is only granted to stay an evil, the consequences of which could not be adequately compensated in damages if it were suffered to go on. The court should look beyond the actual injury to contemplate the consequences and, though palpably wrong, it should balance the inconveniences of awarding or denying the writ, and adjudge as these may incline the judicial mind.
Application of the balancing test does not disclose that the trial court abused its discretion. On the one hand, imminent and irreparable injury will befall the City of Marquette if it is prevented from transporting its Type n refuse to the Reids’ landfill. Within a few days, fifty tons of garbage per day piling up at the city’s licensed compacting and transfer site will create a hazard to public health. Except for a licensed site at Menominee, there is no other available licensed site in the Upper Peninsula, and it is highly unlikely Menominee could or would accept Marquette’s refuse. Further, Marquette was using the Reids’ site only because its own landfill was ordered closed because of leakage.
On the other hand, the testimony at trial showed little, if any, harm to plaintiff township if an injunction were not granted. Irreparable harm could result to Dafter Township or the tri-county area in two ways: (1) if the dumping operations caused pollution or if hazardous waste were deposited in the landfill area; and (2) if the planned twenty-year capacity of the tri-county’s landfill sites was compromised.
No evidence was introduced to show pollution damage to the area. At the hearing in September, plaintiff’s claim of leachate was found to be based on erroneous calculations. Further, allegations of hazardous waste dumping based on trucking manifests were not substantiated. Earl Olsen, a dnr official, testified that, while in the past the Reids had violated dnr rules in five particulars, the dnr and the Reids had subsequently agreed on a program to bring the landfill operation into compliance. He characterized the Reids’ compliance with dnr regulations as good and stated that the operation was not a source of any major environmental problem. In his detailed written opinion summarizing the proofs, the trial judge found that the alleged violations caused by the lack of a leachate disposal system and the dumping of hazardous waste were not adequately shown.
Similarly, plaintiff failed to show that the tricounty’s capacity to handle anticipated waste over the next twenty years would be compromised if waste were imported from Marquette and from other communities both within and without Michigan. Proofs disclosed that the Reids’ landfill, though mentioned in the tricounty plan, was not relied upon when the Planning Commission established the twenty-year capacity requirements for the tri-county area. Although the Planning Commission knew about the Reids’ landfill, it chose not to rely upon it to meet the anticipated landfill requirements of the tri-county area. Consequently, disposal of waste from Marquette and from other communities outside the tri-county area will have no impact on the tri-county plan.
Furthermore, although the testimony disclosed that the Reids were accepting Type n waste from such distant points as East Jordan, Muskegon, and Menominee, the proofs did not indicate whether this importation was sporadic or whether it was continuous and substantial. In any event, it is abundantly clear that the tri-county area would not sustain a loss of landfill capacity. Thus, under either the Wexford Co, supra, real and imminent danger test, or the Wagner Electric, supra, balancing test, plaintiff did not carry its burden of proof to support an injunction. MCR 3.310(A)(4).
Undaunted by any failure to obtain injunctive relief under the balancing or imminent danger test, counsel for plaintiff argues that injunctive relief is nevertheless mandated by reason of the violation of rules promulgated by the director of the dnr. Pursuant to MCL 299.430(1); MSA 13,29(30)(1), the director of the dnr promulgated 1982 AACS, R 299.4701 et seq. These rules, effective January 6, 1982, explain and amplify the statutory procedure for the development and implementation of a solid waste management plan. Specifically, plaintiff claims a violation of the Solid Waste Management Act because of Marquette’s failure to comply with Rule 299.4711 which states:
Rule 711. To comply with the requirements of the act and to be eligible for 80% state funding, county solid waste management plans shall be in compliance with the following general format and shall contain the following elements:
(e) Plan selection shall be based upon the following:
(iii) Site requirements, including the following requirements:
(C) A site for a solid,waste disposal area that is located in one county, but serves another county, shall be identiñed in both county solid waste management plans. [Emphasis supplied.]
A right of action to enforce violations of rules promulgated under the act is given municipalities under MCL 299.433; MSA 13.29(33). A "municipality” includes a township. MCL 299.405(2); MSA 13.29(5X2).
Rule 299.471l(e)(iii)(C) was specifically relied upon in two recent decisions of this Court affirming a trial court’s injunction which prevented a landfill operator in county A from receiving waste imported from county b until the amendment of the two counties’ solid waste management plans. Saginaw Co v Sexton Corp of Michigan, 150 Mich App 677; 389 NW2d 144 (1986), lv pending (Docket No. 78575); Fort Gratiot Charter Twp v Kettlewell, 150 Mich App 648; 389 NW2d 468 (1986), lv pending (Docket No. 78573). Plaintiff asserts these cases are controlling. We respectfully disagree.
While the Reids’ disposal site is not identified in the Marquette County plan (no plan having yet been finalized in Marquette County), at no place in the record has plaintiff established that the Reids’ landfill was not identified in the importing municipalities’ (other than Marquette) county plans. Thus, as to importation from East Jordan, Muskegon, Menominee and sources outside the tricounty area other than Marquette (Issue v, supra), Rule 299.4711(e)(iii)(C) provides no basis for enjoining importation.
Because plaintiff established that the Reids’ landfill was not identified in a Marquette plan, a closer question is involved as to the waste imported from Marquette County (Issue iv, supra). Nevertheless, we find Sexton Corp and Kettlewell distinguishable. These cases, unlike the situation in the instant case, involved an actual or perceived loss of the receiving county’s planned capacity. The Sexton Court, after stating that the purpose of Rule 299.4711(e)(iii)(C) was to insure that the site capacity of the county receiving the waste would be sufficient to accommodate the waste of the importing county for the twenty-year planned period, took proofs which disclosed the importation of solid waste from Bay County into Saginaw County would reduce the planned Saginaw landfill capacity by some forty percent.
A bench trial was conducted on September 11, 1984. The director of public works for Saginaw County testified that the disposal of an additional 75 tons of solid waste per day in Saginaw County would reduce the county’s available landfill capacity from a nine-year to a five-year level. The director further pointed out that if the Bay County facility was allowed to operate at its maximum transfer capacity, plaintiff’s overall landfill space would be reduced by as much as 40%.
The trial court rendered a decision in favor of plaintiff, holding that, although plaintiffs solid waste management plan did not expressly prohibit the disposal in Saginaw County of solid waste from Bay County or any other county, the plan did identify defendant’s landfill for a specific and exclusive purpose and that defendant’s activities signiñcantly interfered with the plan adopted by the county and approved by the state. [150 Mich App 681-682.]
Similarly, the Kettlewell Court reasoned that the purpose of the rule was to insure that a plan adopted by one county will not be disrupted by disposal of waste from another county.
Each county is permitted to address local con cerns and to adapt its plans to local conditions while at the same time safeguarding parochial decision-making by requiring the plan to be approved for inclusion in the state plan. The rules and the act provide a method whereby a county can develop a plan which is workable and will not be disrupted by future disposal of waste from sources not accounted for during the planning process. [150 Mich App 654.]
Plaintiff township, located in St. Clair County, sought an injunction to stop defendants from disposing solid waste from Macomb County. At a four-day trial, testimony disclosed that the Ma-comb County plan listed five landfill sites outside Macomb County for disposal but did not include plaintiff township site and the St. Clair County plan provided for receipt of St. Clair County waste only. Based on this, the trial court concluded that the clear implication of the plans was that the Kettlewell site was not intended as a location for the depositing of Macomb County waste. Unlike the case before us, no testimony disclosed that disposal of Macomb waste in St. Clair County would not reduce the planned capacity or otherwise prejudice the St. Clair twenty-year plan.
We refuse to extend the rule in Sexton and Kettlewell to situations where the evidence at trial affirmatively disclosed that importation of waste from another county would not prejudice or compromise the receiving county’s twenty-year plan. Nothing in the Solid Waste Management Act specifically precludes the importation of waste from one county to another as long as the waste is deposited in a licensed landfill. While violation of Rule 299.4711(e)(iii)(C) may constitute grounds for an injunction in certain instances, it is not grounds for an injunction where the proofs disclose that the incoming waste (1) does not constitute a pollution hazard, (2) will not compromise the receiving county’s planned landfill capacity, and (3) is being disposed of in reasonable compliance with operating rules of the dnr. The foregoing conditions having been met by defendants’ proofs, we find no grounds for reversal.
Affirmed. No costs, a question of public importance being involved.
Plaintiffs license to operate the landfill was renewed by the dnr prior to the deadline set by the court.
Plaintiffs Issues i through v are addressed in the following order: m, IV, v. I. II.
The question of whether the Solid Waste Management Act preempted local government regulations concerning the operation of sanitary landfills was not resolved until July 1, 1985, when this Court in Southeastern Oakland Incinerator Authority v Avon Twp, 144 Mich App 39; 372 NW2d 678 (1985), affirmed the trial court’s holding that a township is totally preempted from regulating landfill operations.
Rule 299.4315(5) — Blowing Papers, Rule 299.4316(1X5) — Cover, Rule 299.4315(9) — Burning, and Rule 299.4315(15) — Well Samples.
Rule 299.4711(e)(iii)(C) requires the site in controversy to be identified in both county plans. Contrary to plaintiffs assertion that the Reids’ landfill is not identified in the tri-county plan, the proofs disclose that not only was the Reids’ site specifically mentioned in the tri-county report, but was also specifically included in the tri-county plan pursuant to an order of the Chippewa Circuit Court. | [
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Per Curiam.
Plaintiff appeals from the trial court’s grant of summary disposition, MCR 2.116(0(10), in favor of defendant on plaintiffs claim for declaratory judgment.
Plaintiff suffered a disabling injury in an auto accident on December 13, 1982. He was not employed at the time of the accident.
The present dispute concerns the computation of no-fault personal protection insurance benefits for plaintiff’s "work loss,” defined in MCL 500.3107(b); MSA 24.13107(b) as "loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured.” Specifically, the parties dispute whether, and how, the loss of income should be computed pursuant to MCL 500.3107a; MSA 24.13107(1), which applies to "temporarily unemployed” persons and provides that "work loss [for such person] shall be based on earned income for the last month employed full time preceding the accident.”
At the time of the auto accident on December 13, 1982, plaintiff had last been employed by farm owner Jerry Trask, from August 5, 1982, until October 17, 1982, at $3 per hour or $141 per week for a forty-seven-hour work week. Previously, plaintiff had "worked hay” for farmer Jerry Coy for ten eight-hour days at $3.50 per hour during June and July of 1982.
State Farm paid plaintiff work loss benefits through 1984 on the basis of his aggregate income for the last year before his disability, $1,690. On February 7, 1985, plaintiff filed a complaint for a declaratory judgment that defendant was underpaying him for his work loss. Specifically, plaintiff contended he was a "temporarily unemployed” person and that § 3107a entitled plaintiff to benefits computed on the basis of earned income of $141 per week, his earned income for the last month he worked a forty-hour week, or, as plaintiff contended, "full-time” as set by statute.
Defendant responded with a motion for summary disposition, claiming that plaintiff was not a "temporarily unemployed person” within the meaning of § 3107a and, as such, was entitled to an annual wage loss benefit based only on his aggregate income for the year preceding his liability. In support of its motion, defendant submitted wage and salary verification forms completed by Trask and Coy.
The trial court found that work loss benefits were not properly payable computed on the basis of plaintiff’s earned income for the last month in which he was employed full time:
[Section] 3107a was designed to alleviate the hardship of temporary employment. The situation envisioned in the adoption of 3107 was that discussed, for example, in Lewis v DAIIE, 90 Mich App 251 [282 NW2d 794 (1979)]. An ordinary, full-time employee, worked for a living, worked full time and some overtime, was disabled and as a result was unable to work further. Prior to the disabling injury, however, he had been temporarily laid off and was temporarily unemployed.
In that circumstance, 3107a provides that he’s entitled to benefits, and the amount of the benefits is measured by the last month of regular, full-time employment.
I don’t think it’s fair to characterize a seasonal worker as being temporarily unemployed during that period of time when he’s not working because his unemployment is not only foreseeable but it’s part of his general economic conditions. It’s understood. He understands that he works seasonably, that he works only when the work is available; and his unemployment isn’t temporary in the sense that it would be in Lewis and others.
It seems to me that one cannot take a seasonably employed worker and treat him as a full-time wage earner because of the happening of a disabling injury.
Upon a motion for summary disposition on the ground that no genuine issue as to any material fact exists, the trial court must consider any affidavits, pleadings, depositions, admissions and documentary evidence then filed in the action. MCR 2.116(G)(3)(b); Durant v Stahlin, 375 Mich 628, 646; 135 NW2d 392 (1965) (Souris, J., concurring). In ruling on such a motion, the trial court, giving the benefit of any reasonable doubt to the opposing party, must find that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). An opposing party may not rely solely upon allegations in the pleadings to resist a motion for summary disposition based on MCR 2.116(0(10).
We conclude that no material issue of fact presents itself from the pleadings and documentary evidence presented and that plaintiff, as a matter of law, has no entitlement to the benefits he seeks. First and foremost, this Court must aim to determine and give effect to the intent of the Legislature. Dearborn National Ins Co v Comm’r of Ins, 329 Mich 107; 44 NW2d 892 (1950).
Section 3107a, at issue, cannot be read in a vacuum. It provides that its provisions are "[subject to the provisions of section 3107(b),” where "work loss” is defined as "consisting of loss of income from work an injured person would have performed. . . if he had not been injured.”
The work loss benefits section of the no-fault act insures that work loss benefits are available to compensate injured persons for the income they would have received but for their accidents. Accordingly, a party seeking work loss benefits under § 3107(b) must show actual loss; a mere loss of earning capacity is not sufficient. Struble v DAIIE, 86 Mich App 245, 251, 255-256; 272 NW2d 617 (1978), lv den 406 Mich 885 (1979).
Similarly, with regard to persons employed for forty-hour weeks for certain periods during the year, this Court has rejected the computation of benefits as plaintiff urges here in the case of a college student who, although employed full time in the summer, could not show he would be so employed during the school year. Kennedy v Auto-Owners Ins Co, 87 Mich App 93; 273 NW2d 599 (1978).
In the pleadings and documentary evidence before it, the trial court had no reasonable basis to conclude that plaintiff would have consistently performed full-time work had he not been injured. Plaintiffs employment history, that of a casual employee, defies such a conclusion. Plaintiffs unemployment was not temporary. Instead, any employment plaintiff obtained was temporary and, as noted by the trial court, his unemployment was foreseeable and a part of his general economic condition. For this reason, Szabo v DAIIE, 136 Mich App 9; 355 NW2d 619 (1983), cited by plaintiff, is distinguishable. ‘
This Court need not concern itself today with deciding at what point a history of past employment raises a question of material fact as to whether benefits should be computed under § 3107a on the basis of a claimant’s last full-time employment.
We do reject plaintiffs argument that the no-fault act grants him payment for wholly speculative economic loss as a quid pro quo for the no-fault act’s limitations on tort liability.
The trial court’s grant of summary disposition is affirmed. | [
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Per Curiam.
Plaintiffs appeal as of right from a circuit court order which granted summary disposition as a matter of law in favor of defendant Michigan National Bank Corporation on the basis that a consumer loan agreement between plaintiffs and the defendant bank did not come under the terms of the Motor Vehicle Sales Finance Act (mvsfa), MCL 492.101 et seq.; MSA 23.628(1) et seq. The partial summary disposition in this case involved only the plaintiffs and defendant bank, and neither the defendant dealer nor the defendant manufacturer of the 1983 Chevrolet S-10 Blazer financed by the consumer loan have filed briefs in this appeal. Plaintiffs raise three issues on appeal, none of which afford them any relief.
On June 29, 1983, plaintiff Randy Barnes contracted to purchase the vehicle from the dealer for $12,800. Mr. Barnes paid $1,200 with a trade-in and the balance of $11,600 was paid with the proceeds of a consumer loan which he obtained directly from defendant bank. Apparently because Mr. Barnes was a farmer whose typical income pattern differed from that of most people, and because of his longstanding relationship with the bank, the loan was set up to provide for eight semiannual payments.
In April, 1984, after the first installment payment had been paid in December, 1983, plaintiffs became dissatisfied with the mechanical condition of the vehicle, which by that time had approximately 18,000 miles on it, and filed the instant suit seeking damages from the dealership and the manufacturer. Plaintiffs also sought relief from their obligation under the consumer loan agreement with the bank. Plaintiffs alleged in their summary disposition motion that the bank took subject to their defenses against the dealer relating to the vehicle and that they should be relieved of having to make the installment payments until the dispute with the dealer and manufacturer was resolved. Defendant bank responded in its own motion that the mvsfa was inapplicable to the loan, and sought judgment for the unpaid balance plus interest, costs and attorney fees.
At the hearing on the summary disposition motions, the trial judge found that the loan papers had been drawn as a direct loan by the bank, at the bank, with no recourse by the bank against the dealer. The court concluded that the bank’s retention of a security interest in the vehicle was insufficient to bring the loan within the mvsfa. In granting defendant bank’s summary disposition motion, the judge opined that the purpose of the act is to leave the purchaser in a position of leverage against a party who could resolve the problem between the customer and the dealer. Since this was a direct loan without recourse, the bank had no leverage whatsoever to apply against the dealer.
Plaintiffs now contend that the trial court erred as a matter of law in finding that the agreement between themselves and the bank was not an installment sale contract within the terms of the mvsfa. Plaintiffs point to the definition of installment sale contract contained in MCL 492.102(9); MSA 23.628(2)(9) in support of their argument:
"Installment sale contract” or "contract” shall mean any contract for the retail sale of a motor vehicle, or which has a similar purpose'or effect under which part or all of the price is payable in 2 or more scheduled payments subsequent to the making of such contract, or as to which the obligor undertakes to make 2 or more scheduled payments or deposits that can be used to pay part or all of the purchase price, whether or not the seller has retained a security interest in such motor vehicle or has taken collateral security for the buyer’s obligation, and shall include any loan, any mortgage, any conditional sale contract, any purchase-money chattel mortgage, any hire-purchase agreement or any contract for the bailment or leasing of a motor vehicle under which the hire-purchaser, the bailee or lessee contracts to pay as compensation a sum substantially equivalent to or in excess of the value of the motor vehicle and any other form of contract which has a similar purpose or effect. The terms shall not include any sale or contract for sale upon an open book account, wherein the seller has not retained or taken any security interest in the motor vehicle sold or any collateral security for the buyer’s obligation, and wherein the buyer is not required to pay any sum other than the cash price of the motor vehicle sold in connection with such sale or extension of credit, and wherein the buyer is obligated to pay for the motor vehicle in full within 90 days from the time the sale or contract for sale was made. These terms shall also mean and apply to any extension, deferment, renewal or other revision of such installment sale contract. [Plaintiffs’ emphasis.][ ]
Plaintiffs argue that nowhere in the act is there any requirement that the loan be indirect rather than direct. Plaintiffs contend that the emphasized language brings the instant agreement within the scope of the mvsfa. However, plaintiffs’ interpretation ignores the second sentence of § 2(9) as well as § 36 of the act, MCL 492.136; MSA 23.628(36). It is clear from these provisions that the act does not apply to all circumstances which involve the sale of a motor vehicle. The second sentence of § 2(9) provides that where the dealer has not retained or taken any security interest in the motor vehicle, and the buyer pays the dealer only the cash price of the vehicle and pays for the motor vehicle in full in ninety days, there is no installment sale contract. By analogy, where, as here, plaintiffs dealt directly with the financial institution, it is apparent that the mvsfa should not apply.
Moreover, § 36 of the act provides that the act is not otherwise intended to apply to financial institutions such as banks, savings and loan associations and credit unions, stating:
This act shall not affect or impair a business conducted lawfully under Act No. 21 of the Public Acts of 1939, as amended, being sections 493.1 to 493.26 of the Michigan Compiled Laws, Act No. 319 of the Public Acts of 1969, as amended, being sections 487.301 to 487.598 of the Michigan Compiled Laws, Act No. 156 of the Public Acts of 1964, as amended, being sections 489.501 to 489.920 of the Michigan Compiled Laws or Act No. 285 of the Public Acts of 1925, as amended, being sections 490.1 to 490.65 of the Michigan Compiled Laws.
In the case at bar, the agreement was solely between the plaintiffs and the bank, and the bank cannot be considered to be entering into dealer contracts or a "holder” of a contract for the installment sale of the vehicle. Instead, in this case, the bank is not a regulated party because this was a direct loan from the bank to the consumer plaintiffs.
Although plaintiffs argue that Oakland National Bank v Anderson, 81 Mich App 432; 265 NW2d 362 (1978), lv den 404 Mich 827 (1979), construes the mvsfa as applying to direct loans, the decision does so in dicta with no supporting analysis. The case cited the mvsfa as authority for the proposition that the bank’s action in accelerating and declaring in default a direct loan financing a motor vehicle when the borrower defaulted upon a separate loan was improper. While the result in the Oakland National Bank case is probably correct, we believe that for the reasons already set forth in this discussion, to the extent that that case may be read as applying the act to direct loans, the Court’s reliance upon the mvsfa in that case was misplaced.
The overriding consideration in this case is the true relationship between the bank and the plaintiffs, and the lack of any relationship between the dealer and the bank. The crux of the transaction was that of a personal loan by the bank to the plaintiffs, not dealer- or bank-induced financing of the sale of the motor vehicle. As the trial court correctly recognized, even if the bank was found to be within the scope of the mvsfa and subject to the defenses plaintiffs had against the dealer, the bank is without recourse against the dealer. Where, as here, the bank is an unrelated third party which has made a separate transaction with plaintiffs to extend them credit, we cannot conclude that the Legislature intended the bank to be left "holding the empty bag.”
Plaintiffs also argue that because defendant failed to submit its proposed judgment within seven days of the date of the hearing and because plaintiffs never approved the judgment as to form, the judgment was entered in violation of MCR 2.602(B)(3). Plaintiff’s argument is incorrect. The rule clearly vests the court with discretion to allow the submission of the judgment or order beyond the seven-day period. In this case, plaintiffs were served with a copy of the proposed judgment in advance of its January 27, 1986, entry, they do not allege that the judgment was entered before they had an opportunity to read it and their claim that such entry was improper is without merit.
Finally, we reject plaintiffs’ claim that the provi sion for attorney fees in the judgment was improvidently entered. The consumer loan agreement between the parties clearly provided for the bank’s recovery of reasonable attorney fees in the event of plaintiffs’ default. Although the trial court never directly addressed the question of attorney fees at the hearing, the bank’s summary disposition motion included the claim. Defendant bank submitted its claim for attorney fees in the proposed judgment. Since plaintiffs filed no timely objection to the proposed judgment, we conclude that they waived the issue. Under the circumstances, the trial court properly refused to set aside the award.
For the foregoing reasons, the decision of the trial court is affirmed.
This is the 1970 version of § 2(9) which was effective at the time this suit was commenced. The section was subsequently amended by 1984 PA 339, § 1, effective March 29, 1985. The amendment does not alter the meaning of the definition in any manner relevant to this case.
We note too that plaintiffs have supplied the Court with no transcript of argument on their March 27, 1986, motion to set aside the judgment and award of attorney fees. | [
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Carr, J.
Plaintiff herein, by his next friend, brought this action in circuit court to recover damages for injuries sustained by him in a traffic accident. The declaration filed alleged that on the 27th day of September, 1952, plaintiff was employed as a stable-boy at B Bar M Ranch in Macomb county, that at approximately 11 o’clock in the evening, or nighttime, of said day plaintiff, defendant Upton, and Orville Martin left the ranch for the purpose of going to a certain restaurant, that on the return trip defendant Upton insisted on driving the car which had been rented by him from the defendant Auto-Truck Rental Company, and that said Upton drove in a grossly negligent manner, at an excessive rate of speed, and in wanton disregard of the rights and safety of the plaintiff. It was further averred that Upton was under the influence of intoxicating liquor of which he had partaken during the day, and for that reason was incapable of operating the vehicle in a safe manner. After proceeding for approximately 1-1/2 miles from the restaurant the car struck the guard rail of a bridge, resulting in serious injuries to plaintiff and in the death of Martin. The pleading alleged that at the time of the accident plaintiff was a “gratuitous passenger” in the automobile.
The defendants filed separate answers to the declaration, each denying plaintiff’s right to recover damages. Thereafter Upton’s attorneys withdrew from the case and at the time of the trial he was not present in court, nor was he represented by counsel. At the conclusion of plaintiff’s proofs as to the conduct of Upton in the operation of the automobile a request for judgment was made on behalf of the defendant Auto-Truck Rental Company. Following argument based on the proofs submitted on behalf of plaintiff, the trial judge, hearing the cause without a jury, concluded that gross negligence, or wilful and wanton misconduct, on the part of Upton had not been established. The court further expressed the opinion that plaintiff was guilty of contributory negligence in riding with Upton if the latter was in such, condition as to have been incapable of operating the vehicle in a proper manner. The judgment entered contained the following recital :
“The parties being in court and a trial by jury being waived by stipulation, the court heard the testimony and the arguments of counsel and thereupon finds that the defendants are not guilty as the plaintiffs have complained against them.”
A motion for a new trial was subsequently made and denied, and plaintiff has appealed" from the judgment.
At the outset of the trial counsel for defendant Auto-Truck Rental Company raised in its behalf the question whether gross negligence on the part of Upton, if such there was, imposed liability on it. The matter was again referred to after the closing of the proofs in connection with a discussion of the factual issues involved. The trial court did not pass on the legal issue thus presented. It may be noted that the recent decision of this Court in Peyton v. Delnay, 348 Mich 238, is squarely in point. See, also, Wieczorek v. Merskin, 308 Mich 145.
As appears from the judgment entered, the trial court based determination of the cause on the testimony as to how the accident occurred and the reasons therefor, insofar as disclosed by the testimony. At the time of the accident plaintiff was 13 years of age. His testimony indicates that he was in all respects a normal youth of such age. It is argued that he should have left the car when Upton insisted on driving. It may be noted in this connection that Martin also remained in the automobile. The record indicates that Martin was at the time past 21 years of age, and that Upton was approximately 25 years old. As we view the matter, however, it is unnecessary to consider on this appeal whether plaintiff was guilty of negligence and, if so, whether such fact would bar relief in the instant case.
No witness other than plaintiff testified as to the occurrence of the accident, or the condition of Upton at the time. The question presented is whether, construing the testimony in plaintiff’s favor, the finding of the trial judge that gross negligence, or wilful and wanton misconduct, had not been established was against a preponderance of the proof. It appears that both plaintiff and Martin objected to Upton’s driving the car on the return trip from the restaurant on the ground that he was not in proper condition to drive. However, Upton was responsible for the vehicle, he having rented it from the other defendant, and he was entitled to its control. It does not appear that he had any difficulty in starting the car, and he proceeded for approximately 1-1/2 miles prior to the accident without becoming involved with any other vehicle. The following testimony of the plaintiff as to what occurred during that distance fairly indicates the claim made in his behalf:
“Q. During that time, what did you observe so far as Lloyd driving the car ?
“A. Well, Lloyd was going fast. He was going from side to side on the road. He was sort of swerving back and forth on the road.
“Q. Was it dark at that time?
“A. It was dark out.
“Q. Did you make any further protest?
“A. Well, most all the way we was trying to talk him into letting Orville drive.
“Q. He wouldn’t stop the car?
“A. One time I remember when he asked him, I think it was Orville said, ‘Come on, let me drive because you are in no condition,’ and Lloyd said to him, ‘What do you want to do, get me killed ?’
“Q. What is the last that you recall before the impact?
“A. Well, we were coming towards the bridge and I could see the headlights shining off the steel, and then I hollered, but he kept going straight for the bridge and hit it. * * *
“Q. During this ride for approximately a mile and a half, were yon racing any other cars ?
“A. Not that I remember.
“Q. He just drove that way without any ears involved ?
“A. Yes, sir.
“Q. How many times did you protest, if you recall?
“A. It was quite a few times, about 20 times or more.
“Q. In other words, the entire route of the trip?
“A. We were protesting about up to Chicago road and then we give up. There was only about 500 feet to the bridge then.
“Q. Can you estimate his speed?
“A. I’d say he was going about 70 miles an hour.”
With reference to Upton’s alleged intoxication plaintiff testified that about 4 o’clock in the afternoon Upton was “pretty well drunk,” and that he saw him drinking at some time before the parties left the ranch. He claimed further that while in the restaurant Upton went to sleep, expressing no opinion, however, as to whether such conduct was the result of drinking or because Upton was tired. Witness stated that he asked him to play a record, which. Upton did but not the one for which plaintiff asked. It does not appear that there was any difficulty in awakening Upton when the parties were ready to start the return trip.
In indicating his conclusions from the bench, the trial court said, in part:
“The only testimony in this case indicates that the driver was driving at a speed of approximately 70 miles an hour, and. that the car was weaving. There is no indication that it was weaving off the road, or to the wrong side of the road, or that the weaving was of a sufficient magnitude to indicate anything in particular. The driver did hit the bridge, but in the absence of his testimony, it is not clear as to just why.
“Therefore, I am going to enter a judgment of no cause for action.
“Mr. King: I might interject, Your Honor, there were protest expostulations made.
“The Court: That is right. Let the record show there were expostulations of protest from the other 2 occupants of the car. These protests were all, as the court recalls, to the effect that the driver should let the other man drive.”
The statement of the trial judge is in accord with the testimony of the plaintiff as to what actually occurred. It does not appear that either Martin or plaintiff complained to Upton that he was driving too fast or that, they found fault because the car was “weaving,” They were insisting that Martin should be allowed to drive. The reasons for Upton’s refusal to comply with their request do not appear, except as a matter of inference from his question, “Do you want to get me killed?” Whether he had reasonable doubts as to Martin’s ability to drive is a matter of speculation only, but his refusal to turn the control of the car over to Martin may not be regarded as establishing a spirit of recklessness and wantonness on his part.
The statutory provision pertaining directly to a cause of action of this nature is found in CLS 1956, §257.401 (Stat Ann 1952 Rev §9.2101) and reads as follows:
“No person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.”
The interpretation given by this Court to the statutory provision quoted is indicated in Horton v. Fleser, 340 Mich 68, and in prior decisions there cited. In holding that the question of liability on the part of the defendant was for determination by the jury, it was said (pp 71, 72) :
“The term ‘gross negligence or wilful and wanton misconduct’ has been defined in numerous cases,, among which are Goss v. Overton, 266 Mich 62; and Titus v. Lonergan, 322 Mich 112. In both of these it was held that each case must be determined upon the basis of the facts involved. In the Titus Case the Court referred to Willett v. Smith, 260 Mich 101, where it was said that the elements necessary to constitute wilful and wanton misconduct may be summarized as follows (p 104):
“‘“(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.” ’
“Excessive speed, unless accompanied by wilful and wanton misconduct, is insufficient to impose liability under the so-called guest act. Bushie v. Johnson, 296 Mich 8. For the statute involved, see CL 1948, § 256.29 (Stat Ann § 9.1446). The mere fact that the guest passenger gave the driver warnings which were not heeded does not, standing alone, con stitute wilful and wanton misconduct. Greimel v. Fischer, 305 Mich 45; Rogers v. Merritt, 307 Mich 459; and Cramer v. Dye, 328 Mich 370. However, this in addition to other circumstances is a proper object for consideration by the jury in arriving at its conclusion.”
Specific discussion of other decisions in accord with Horton v. Fleser, supra, would serve no useful purpose. Whether the driver of a motor vehicle has proceeded recklessly in the face of a traffic hazard that is or should be apparent to him, with a wilful and wanton disregard of the safety of a passenger, is, generally speaking, a question of fact for determination by the trier of the facts. Obviously involved is the state of mind of such driver, which is necessarily a matter of inference from the facts in each case. See Titus v. Lonergan, 322 Mich 112, and prior decisions there cited.
Under the proofs in the instant case it may not be said that the finding of the trial judge that gross negligence or wilful and wanton misconduct had not been established was contrary to the preponderance of the evidence. In such a situation we do not reverse.
Affirmed, with costs to appellee.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred. | [
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Smith, J.
This case involves the legality of certain deficiency drain assessments made upon properties owned by the city of Detroit, hereinafter termed appellant. The properties were located in the Royal Oak drain district in Oakland county. Appellees are the county of Oakland and city of Huntington Woods, together with named public officials thereof.
The 3 properties involved are the zoological park, acquired in 1923, the adjacent parking lot, acquired in 1929 (both of which were opened to public use in 1928 and 1929, respectively), and the Raekham public golf course, acquired in 1924 and opened to public use in the same year. The zoo and the golf course are administered, respectively, by the zoological park commission and the parks and recreation commission. The funds for their maintenance and operation are appropriated by the Detroit common council pursuant to charter authority.
The proceedings with respect to the drain assessments are stated succinctly in the brief of the appellant, adopted in this respect by appellees, as follows:
“Proceedings for laying out and establishing the Royal Oak drain originated in 1925, resulting in an assessment levied on various lands included in said district. Appellant paid in full the drain assessments on its lands therein on December 7, 1925, voluntarily and not under protest.
“Collections on the drain roll proving insufficient to pay the principal and interest on the bonds sold to finance said drain, the then drain commissioner entered an order on April 17, 1941, to effectuate refunding of the bonds and in said order provided for a plan of payment, and, if a deficiency existed, for an additional assessment to be levied upon property in said drain district except on the property which had been sold by the State of Michigan pur suant to PA 1937, No 155, as amended. However, no steps were immediately taken to levy a deficiency assessment pursuant to said order.
“In the years 1950, 1951 and 1952 due to outstanding refunding bonds, the then drain commissioner caused to be placed upon lands in said drain district a deficiency assessment, but the subject properties of appellant were not among those upon which such deficiency assessment was then levied.
“Said deficiency assessment roll as and when first prepared in 1950 listed the aforedescribed properties of appellant as exempt; this status continuing during the subsequent deficiency assessments levied in 1951 and 1952. However, such listing was later arbitrarily ruled out by the Oakland county drain commissioner. Accordingly in the years 1953 and 1954, appellant’s lands were included when an additional deficiency assessment was next placed upon the lands in said assessment district.”
Appellant having refused to pay the deficiency assessments placed upon the lands, and a controversy existing between the parties with respect thereto, action was brought to obtain a declaratory decree under PA 1929, No 36 (CL 1948, § 691.501 et seq. [Stat Ann § 27.501 et seg.]). The principal facts were stipulated and after taking the testimony of Mr. Pilkins, deputy drain commissioner of Oakland county, and the consideration thereof, together with pertinent exhibits, the trial chancellor held, in part, as follows:
“That such deficiency assessments placed on the Royal Oak drain district deficiency assessment rolls for 1953 and subsequent years to date hereof against plaintiff’s zoological park and the parking lot adjoining the zoological park, more particularly described above, shall be and are hereby stricken and the amounts levied thereunder for each of said years against plaintiff’s said premises are cancelled.
“That the relief sought by plaintiff for the Rack-ham golf course in said Royal Oak drain district be and the same is hereby denied for the reasons stated in the court’s opinion.”
The city of Detroit has appealed the determination as to the golf course, and the county of Oakland, et al, as to the zoo and parking lot.
It is provided by statute (CLS 1956, § 211.7 [Stat Ann 1957 Cum Supp §7.7]), as follows:
“The following property shall be exempt from taxation : * * *
“Third, lands owned by any county, township, city, village or school district and buildings thereon, used for public purposes.”
"We have decided heretofore (Newberry v. City of Detroit, 164 Mich 410, 413 [32 LRA NS 303]) “that in this State the exemption of municipal property from special assessments extended only to such property as is held for governmental purposes,” citing City of Big Rapids v. Mecosta Board of Supervisors, 99 Mich 351. (Emphasis added.) See, also, our comprehensive review of the problem in People, ex rel. Auditor General, v. Ingalls, 238 Mich 423, 425, 426, wherein we held:
“The doctrine has been pretty well settled in this State and elsewhere that property owned by the State or by the United States is not subject to taxation unless so provided by positive legislation. And municipalities and State agencies are included in this class when their property is used for public purposes. * * *
“But counsel say the property which the city of Detroit has assessed is not used for governmental •purposes. This is a provision which applies when it is sought to charge a municipality or State agency with taxation, but does not apply to the Federal or State governments. It is of no consequence what use the State makes of its property. The same .reason exists for not taxing State property not in governmental use as exists for taxing State property in govermental use. Therefore, the question as to the use made of the fair grounds by the State is im- . material. . .
“That the foregoing rule is in force in Michigan is supported by City of Big Rapids v. Board of Supervisors of Mecosta County, 99 Mich 351, where the city authorities sought to enforce a special assessment against the county grounds and buildings. There was no question about the county building being used for governmental purposes. In denying the right of the city to impose the tax, it was said:
“ ‘Implied exemptions exist where property is owned and held by the State, its political subdivisions, and its municipalities for governmental purposes. A county is one of the political subdivisions of the State. It would seem to follow that only such burdens of taxation can be imposed upon this property as are expressly provided by law. * * * Whenever the taxing power seeks to impose a tax upon such property it must be able to point to legislative or constitutional authority;’ citing authorities.”
It is clear from the foregoing that we are remitted to the question of whether or not the golf course, the zoo, and its parking lot are being used for public or governmental purposes.
It is provided in the Michigan Constitution (1908}, art 8, § 22, as follows:
“Any city or village may acquire, own, establish and maintain, either within or without its corporate limits,, parks, boulevards, cemeteries, hospitals, almshouses- and all works which involve the public health or safety.”
The provisions of PA 1909, No 279 (home-rule cities), are in harmony therewith, it being provided in section 4a (added by PA 1921, No 353), as follows:
“Bach city may provide in its charter for the acquisition by gift of real or personal property made by grant, devise, bequest or in any other manner, for public parks, grounds, boulevards, zoological gardens, cemeteries, public buildings and other public purposes, whether made directly or in trust, and whether within or without its corporate limits, or within or without the corporate limits of the county in Avhich such city is located; and for the appropriation, by the common council of such city, of funds for the maintenance and upkeep of such gifts, so acquired, as such common council may set aside for said purposes.”
Likewise the charter of the city of Detroit, title 3, ch 1, § 12(u), provided as follows:
“To acquire by gift, grant, devise, bequest or any other manner real or personal property, for public parks, grounds, boulevards, zoological gardens, cemeteries, public buildings and other public purposes, whether such property is acquired directly or in trust, and whether such property is located within or without the corporate limits of the city of Detroit, or within or without the corporate limits of the county of Wayne; and to provide for the appropriation of such funds for the maintenance and upkeep of such property, so acquired, as the common council may set aside for said purpose.”
It is stipulated by the parties with respect to the use and maintenance of these properties as follows:
“That the above lands were acquired for the purpose of establishing a zoo together with adjoining public parking facilities for the counties of Wayne, Oakland and Macomb.
“That the said zoological park was open for admission to the public on August 1, 1928, and said parking area approximately September 1,1929, being dedicated to the general public by the city of Detroit 'and operated as a governmental function supported by tax funds appropriated therefor and same have been used continuously since said respective dates, for public purposes. * * *
“That the said golf course was opened for the use of the public in August, 1924, being dedicated to the general public by the city of Detroit and operated as a governmental function supported by tax funds appropriated therefor and same has been used continuously since August, 1924, for public purposes.”
The trial chancellor’s conclusion that the zoological park and the parking lot adjoining are not subject to the deficiency assessment placed against them was correct. These properties were held and used for governmental or public purposes.
As to the golf course, a similar problem was presented to the supreme court of Minnesota in the case of Booth v. City of Minneapolis, 163 Minn 223, (203 NW 625), wherein the authority of the city to purchase the properties in question was challenged In upholding the said authority the court held in part as follows (p 225):
“The home-rule charter is based upon section 1271, GS 1923, which authorizes the city to take property without its boundaries ‘needed for the full discharge of any public function which it is permitted to exercise.’ It is suggested that ‘public function’ relates to water supply, drainage and all forms of transportation. We see no justification for the limited construction. In fact a municipality has a peculiar interest in the recreation or the pleasure of the public. 19 RCL 721. Public parks in all the metropolitan cities contain golf courses. The public courses in parks are within financial reach of all. The golf course being a place of recreation must be included in the terms ‘parks and parkways’ as used in the city charter and ‘public function’ as used in the statute. A park is a pleasure ground for the recreation of the public to promote its health and enjoyment. A public golf course is for the same purpose. Parks are used for public recreation by indulgence in tennis, pitching horseshoes, croquet, baseball, kitten ball, golf, walking, horseback riding, picnicking, skating, bathing and general outdoor exercise, band concerts, maintenance of botanical and zoological gardens and other recreations. If ground be acquired for these purposes, it may be acquired for a part of them. It follows that the city has authority, under its charter, section 2, chapter 16, and also under the statute, section 1271, GrS 1923, to acquire and maintain a public golf course.”
It is clear from the above that the term “governmental purpose” is not so limited as appellees contend, and the case of People, ex rel. Le Roy, v. Hurlbut, 24 Mich 44 (9 Am Rep 103), is not to the contrary. The golf course in question comes within the definition of a public park. We agree with the factual determination of the trial chancellor that it is used continuously for public purposes. It is our conclusion of law therefore, that it is not liable for the special assessments made.
It is also the contention of appellees, “that at the time of the acquisition of the zoo property and the parking lot, the original assessment of benefits having been made, the possibility of reassessment constituted a lien, or encumbrance, which subsisted even though the city of Detroit might be exempt from other taxes.” It is stipulated by the parties that the zoo and parking lot were opened to public use in the fall of 1928 and 1929, respectively. Prior thereto, however, certain proceedings were had with respect to the Royal Oak drain. We quote from the facts stipulated:
“(6) That the county drain commissioner of Oakland county in the year of 1925 ascertained that it was necessa-ry to build a so-called Royal Oak drain; that said proceedings for the laying out of the establishment of the drain were regularly and properly had; an assessment was levied, on the various lands -in the said district, including the lands of the plaintiff:, that plaintiff on December 7, 1925, paid said drain assessments in full, voluntarily and not under protest.
“(7) That .the collection on said roll being insufficient to pay the principal and interest on the bonds sold to finance said drain, the then drain commissioner, Earl Clark, on April 17, 1941, entered an order to effectuate the refunding of the bonds and in said order provided for a plan of payment, and, if a deficiency existed,, for an additional assessment to be levied upon the property- in the said drain district except on that property which had been sold by the State of Michigan pursuant to PA 1937, No 155, as. amended.”
The difficulty with appellees’ position is that the payment by the city of Detroit of the assessments levied .on the original roll, extinguished the lien of the statute. (CL 1948, § 270.5 [Stat Ann 1952 Rev §11.91].) There was, subsequent to this payment, nothing unpaid to be secured by lien. New proceedings were required (and taken) at a later date in order to provide the basis for the deficiency assessments subsequently levied. In point is Mullen Benevolent Corporation v. United States, 290 US 89 (54 S Ct 38, 78 L ed 192). In this case, the United States acquired certain properties against which special assessments had been levied, but (p 91), ”As title to each lot was obtained the United States paid or caused to be paid all existing assessments against the lot.” The properties were later reassessed for deficiencies. "With respect to the issue before us the court held as follows (p 95):
“What has been said shows that the respondent did not take or destroy any lien belonging to the petitioner. None remained upon the land, when the purchases were consummated. The reassessments were the result of proceedings begun thereafter. They were ineffective to create a lien' upon'lands owned by the government. United States v. Buffalo (CCA), 54 F2d 471.”
The reasoning is equally applicable to the .situation before us.
The decree of the trial chancellor is affirmed with respect to the zoo and parking lot, reversed as to the golf course, and the case is remanded for entry of decree in accordance herewith. No costs, a public question.
Dethmers, C. J., and Carr, Kelly,- Black, Edwards, Voelkbr, and Kavanagh, JJ., concurred.
See CL 1948, § 211.351 et seq. [Stat Ann 1950 Rev § 7.951 et seq.].—Reporter.
Special assessment was here made against the Michigan State Pair grounds, owned by the State of Michigan.
Subsequent amendments have set forth permissible charter provisions in detail. See CL 1948 and CLS 1956, § 117.4a et seq., particularly CLS 1956, § 117,4e (Stat Ann 1949 Rev and Stat Ann 1957 Cum Supp, § 5.2074 et seq., particularly Stat Ann 1957 Cum Supp § 5.2078). | [
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] |
Edwards, J.
This is an appeal from a dismissal of a bill of complaint in Wayne circuit court. The circuit judge, sitting in chancery, heard testimony upon plaintiff’s pleadings which sought specific performance of a claimed oral agreement by a deceased person to leave all her property to. 2 people not related to her in exchange for certain services pertaining to her property.
The deceased was one Mary Holms who died in 1951 leaving a considerable amount of rental property. She left a will by which defendants McBrady and Adams, and Albert S. Taylor (decedent’s brother, now deceased and represented herein by the administrator of his estate) were left the property which is the subject of this suit. The will has been admitted to probate and is not contested.
Plaintiff in his own right, and as administrator of his wife’s estate, claims an oral agreement by which in 1931, and afterwards, Mrs. Holms promised to will all of her property to Mr. and Mrs. Blackwell in exchange for their services to her, principally in the form of property management and maintenance.
The testimony offered to prove this oral agreement came from plaintiff and 5 witnesses. Typical of their testimony was that of Zimmie Hariston:
“Blackwell fixed up her properties. Pie worked for the city but when she would need him over there, she would call. He did plumbing and carpentry work for her, like fixing faucets. He moved furniture- here and there, and did painting and decorating for her. I saw these things myself. * * * From the very first time I saw Mrs. Holms, in ’41 when I was introduced to her, she told me, ‘These are my children. They really work for me and they get everything when I die.’ That is what she told me about the Blackwells. I have heard her say a number of times that the Blackwells were as close to her as ■children.”
This witness also testified to an attempt to put this claimed agreement in writing when she, as a notary public, drafted an agreement. This agreement was never signed by decedent and the witness indicated that it had been lost.
The 2 questions presented by this appeal are:
(1) At the close of plaintiff’s proofs, had plaintiff presented prima facie evidence of the contract ■claimed?
(2) If so, was such an oral contract enforceable under the statute of frauds?
The chancellor who heard the testimony answered these questions in the negative — in definite terms as to the first, and by implication as to the second.
As to the contract, his opinion in dismissing the bill reads:
“The testimony put in on behalf of plaintiff was rather nebulous. I have no doubt that some things were done by the Blackwells towards doing work or performing certain services on behalf of Mary Holms during her lifetime, but I cannot see, for the life of me, any contract to pay for these services by 'conveyance, by will or otherwise, of this property. In fact, I do not know where the property is, nor the description. * * *
“I am not hesitant to say in a case of this type that the plaintiff has taken on a rather heavy burden. The plaintiffs are relying on a contract which was never at any time reduced in writing. They are not mentioned in the will that was probated on behalf of the deceased. The terms of plaintiffs’ alleged contract are far from, satisfactory. I would say that it is elementary that courts cannot make contracts between parties. All a court can do is to interpret the-contract that is already made.
“What was the contract made between the plaintiffs and Mary Holms? I do not know. Where du you find it? In the record as made, in the testimony adduced, I do not see it there.
“I believe that the case in 69 ALR, referred to by counsel for defendants is right in principle, if not on the facts. It appears to me the facts are very close to the case at issue.
“I might say, gentlemen, that I am constrained at this time to agree with counsel for the defendants,, and it must be borne in mind that where the plaintiff seeks specific performance in accordance with the allegations of the bill, you must also agree that specific performance is not a matter of right, but always lies in the sound discretion of the trial court, and this court does not think that it would be doing justice to his oath to give the plaintiffs the relief that they seek, or any relief, as far as that is concerned, and so, therefore, I am constrained to hold that the plaintiffs did not make out grounds for relief in accordance with the allegations and, therefore, the bill of complaint should be and is hereby dismissed, with costs to be taxed by the defendants in favor of them against the plaintiffs.”
This Court, of course, hears appeals in equity cle novo, but we have frequently said that we give great weight to the findings of fact of the judge who heard the witnesses. Hartka v. Hartka, 346 Mich 453; Blough v. Steffens, 349 Mich 365.
A careful review of the testimony fails to convince this Court that plaintiff’s testimony succeeded in establishing an oral contract for the making of a will and performance thereof on plaintiff’s part. The testimony relied upon by plaintiff is consistent with good intentions on the part of decedent toward plaintiff and his wife, hut it does not necessarily represent evidence of a definite and binding agreement. The proffered testimony concerning an attempt to reduce the claimed contract to writing which was rejected by Mrs. Holms, in our view weakens rather than strengthens plaintiff’s case.
Justice Smith, in a recent case involving a somewhat similar problem, said:
“We agree with the appellant that the law must scrutinize closely and with great caution oral contracts to leave to another, upon the promisor’s death, the estate of the latter.” Applebaum v. Wechsler, 350 Mich 636, 642.
In an older case, likewise involving enforcement of an oral agreement to leave property, Justice Potter said:
“Specific performance is not a matter of course but rests in the sound judgment and discretion of the court under all the circumstances of each particular case. Such discretion is not arbitrary and capricious but regulated by well-settled principles. The contract or agreement sought to be enforced must be mutual and the tie reciprocal. It must be certain in all essential particulars. There must be acts of part performance, unequivocally referring to and resulting from the agreement.” Woods v. Johnson, 266 Mich 172, 174.
As to the first question posed, we cannot say that the chancellor abused his discretion by finding insufficient evidence of a binding agreement and dismissing this bill.
It should be noted also that the chancellor’s opinion cites a 69 ALB case which we assume to be Andrews v. Aikens, 44 Idaho 797 (260 P 423, 69 ALR 8).
The 1st, 4th and 5th ALR headnotes summarizing the holding of this case bear quotation:
“1. Specific performance of a contract to execute a will in consideration of services rendered will be decreed only in the absence of a remedy at law, and will be denied if pecuniary compensation can be had for the breach.
“4. Specific performance of an oral contract to devise real estate in consideration of services rendered will not be enforced where the services consisted merely of looking after the business of the promisor without any close, intimate, or filial relationship existing between the parties, and the property has no peculiar sentimental or ancestral value to the promisee, who has made no improvements •upon it.
“5. To warrant specific performance of a contract to devise real estate in consideration of services rendered, the proof must be clear, cogent, and convincing, and the testimony must be that of disinterested witnesses.” 69 ALR 8.
See, also, annotations 69 ALR 14; 106 ALR 742.
This Court has recently dealt with 2 oral agreements where specific performance was granted over ■objections based on the statute of frauds. Applebaum v. Wechsler, supra; Betterly v. Granger, 350 Mich 651.
Three differences from our instant case should, however, be noted in the cited cases:
(1) In each, this Court affirmed a decree entered "by a circuit court after a hearing wherein a chancellor found evidence warranting relief, which was “clear, cogent, and convincing” to him;
(2) In each, there was a close and intimate relationship between promisors and promisees;
(3) In each, the services rendered to the deceased were of a highly personal nature and compensation for them could not have been computed in an action at law.
Affirmed. Costs to appellees.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Voelker, and Kavanagh, JJ., concurred. | [
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Carr, J.
While attempting to cross Jefferson avenue on the west crosswalk of Woodward avenue, in the city of Detroit, plaintiff was struck and injured by an automobile driven by the defendant. The accident happened on May 24, 1952, at approximately 12:45 a.m. In his declaration plaintiff alleged that defendant, while driving in a westerly direction on East Jefferson, disregarded traffic control signals and proceeded through the intersection of said street with Woodward against a red light. The pleading further set forth, among other claims of negligence, that defendant failed to make proper observations and to have his automobile under control. The answer filed by defendant averred that the accident resulted from the negligence of plaintiff in proceeding into the path of defendant’s vehicle in such manner as to render it impossible to avoid the accident. The pretrial statement sets forth the material claims of the respective parties substantially as averred in their pleadings.
On the trial of the cause in circuit court before a jury plaintiff testified with reference to the occurrence of the accident and his injuries received therein. The testimony of other witnesses was also introduced for the purpose of corroborating his claims. At the conclusion of his proofs relating to the accident, counsel for defendant moved for a directed verdict alleging that said proofs were not sufficient to support a conclusion that defendant was guilty of negligence as charged in the declaration, or to justify a finding that plaintiff was not guilty of contributory negligence barring recovery. Tbe motion was granted. Counsel for plaintiff then moved for a new trial on the ground that the court erred in directing a verdict in favor of defendant, and that new evidence of a material nature had been discovered. The motion was denied. Plaintiff has appealed from the judgment entered.
The issue presented on the appeal is whether plaintiff’s proofs, construed as strongly as reasonably possible in his favor, entitled him to have the questions of negligence, proximate cause, and contributory negligence submitted to the jury for determination. As a witness in his own behalf plaintiff claimed that at the time of the accident he was on his way home, intending to cross Jefferson avenue on the west side of Woodward avenue to a safety zone where he might board a streetcar. As he approached Jefferson he noted that the traffic lig’ht showed red for Woodward traffic. Accordingly he waited until the light changed to green, and then undertook to cross. The following excerpt from his testimony fairly indicates the substance of his claims with reference to the facts:
“Q. Now, after you left the northwest curb, what did you do then?
“A. Well, I stepped off the curb, and I looked to my left to see if any cars were making a right-hand turn. There weren’t any, and at the same time I noticed 2 cars already had stopped, one right along side the curb and one right along side that as we proceeded across the street.
“Q. Then what did you do, Mr. Vandervelt?
“A. Well, of course, I took 4 or 5 steps, and then I watched where I was going, of course, and then as we took another few steps we noticed we was nearing the tracks. Then I looked to my right to see if there were streetcars coming from Griswold avenue, and at that time somebody hollered ‘Look out.’ So I swung my head to the left again. I ob served the green light, and I was so surprised to see this car almost on top of me.
“Q. How far away was the car when you first saw it?
“A. It wasn’t very far. It wasn’t only a few feet from me.
“Q. Then what happened next, Mr. Yandervelt?
“A. Well, I got hit, and I tried to pull back, but I couldn’t make it. I got hit. Then I rolled, and, of course, I landed about one-quarter length of the street away. * * *
“Q. What did you do, sir, when you first saw the lights turn green in your favor ?
“A. Well, when I first saw the light change from red to green, why, I looked to my left to see if any right-hand turns were being made by cars because, you know, they have the right-of-way, too, there. So there wasn’t any coming, so I started across the street, and at the same time I was looking to my left. I. seen 2 cars standing there already had stopped across the street.
“Q. That is, before you stepped off or at the time you stepped off the curb, you made this observation ?
“A. I stepped off the curb and looked to the left at the same time.
“Q. Then, is it correct to say you made this observation to which you have just referred at the time you were taking your first step off of the curb at the northwest corner of this intersection and as you were crossing Jefferson avenue, is that correct?
“A. That is right.
“Q. Then, what did you do, Mr. Vandervelt?
“A. Why, we continued our way across the street, and as, of course, I was watching where I was walking, and as we neared the main streetcar track, that is, the main westbound streetcar tracks, why, I looked to my right to see if any cars were coming, that is, the streetcars, because I was going to the streetcar to go home, and the safety zone is right beyond that. As we neared the tracks, I looked to my right to see if any cars were coming around the corner. There wasn’t any coming, and at the same time someone hollered ‘Look out.’ So as I swung my head around, I observed the green light. Then I observed this car to my left, and it was almost on top of me, and my eyes flashed on the windshield and part of the hood.
“Q. When you heard this statement or shout of ‘Look out’ — let me correct that. Immediately before you heard this shout, tell us, if you will, sir, were you looking south — that would be ahead of'you — or were you still looking right to observe any streetcars that might have been eastbound, as I understand your testimony, but I don’t —
“A. (Interposing) Well, you see, I was looking to my right to see if a car was coming from around the corner because the cars came around from Griswold avenue.
“Q. Is that when you heard this ‘Look out’?
“A. Well, I had already looked when I heard somebody holler ‘Look out.’ Just about the same time. Then I swung my head over to see whht was going-on. As I swung- my head over, my eyes observed the green light. It went around further, and I observed the car, and it was almost on top of me. I tried to get away, but I couldn’t. I pulled myself back, but I was hit.”
Plaintiff’s witness Edward Darlak was walking directly behind plaintiff as the latter started to cross Jefferson avenue, and corroborated the claim as to the condition of the light when the parties were at the northwest corner of the intersection. He stated that when the plaintiff left the curb the light was green for north and south traffic. He noted the approach of defendant’s car and shouted “Look out.” Apparently the warning- came too late. Plaintiff and a lady with whom he was walking were struck and thrown to the right. This witness also claimed that he noted the color of the light at the time of the impact and that it was green.
I
Miss Adelle Cote who was crossing the street with plaintiff on the occasion in question, after stating that she was at the northwest corner of the intersection of Woodward and Jefferson, testified, in part, as follows:
“Q. What condition was the traffic light in at that time!
“A. Red.
“Q. And that was red for what traffic?
“A. For the traffic on Woodward, the north and south traffic.
“Q. In other words, you were going in what direction ?
“A. I was going south.
“Q. And the traffic light was red for you?
“A. Yes.
“Q. Now, could you tell us how long you waited at the traffic light?
“A. I waited — well, for the length of the light anyway, whether that takes about a minute or so.
“Q. You waited until the light turned?
“A. Uh-huh. It was a good length of time. It was quite a long light.
“Q. And what happened after the light turned? What color did the light turn to?
“A. It turned green.
“Q. Then what did you do after that?
“A. I stepped off the street and was walking right next to Mr. Yandervelt.
“Q. On which side of Mr. Yandervelt were you walking ?
“A. I was on his right.”
The testimony of the witnesses is sufficient to justify an inference that defendant was proceeding in a westerly direction on Jefferson avenue, that he struck plaintiff in proximity to the north streetcar tracks on said street, that the controlling traffic light was green for southbound traffic on Woodward, and that defendant entered the intersection against a red light. Under the proofs, construed as before indicated, the issue as to defendant’s negligence was one of fact for determination by the jury.
The more serious question is whether the proofs offered were sufficient to justify a finding that plaintiff was not guilty of contributory negligence constituting a proximate cause of the accident. In other words, did he sustain the burden of proof resting on him in this respect? Accepting his testimony as correct, he duly made observations with reference to traffic and control signals as he started across Jefferson. It was raining at the time but it does not appear that he carried his umbrella in such a manner as to obscure his vision in any direction. As he approached the streetcar tracks he looked to his right, as he claimed, being concerned in the possible approach of a streetcar. His attention was directed to the approaching automobile by witness Darlak,. but apparently it was too late then to avoid being struck. Under the circumstances suggested, we conclude that the proofs submitted by plaintiff were sufficient to entitle him to have the question of his contributory negligence submitted to the jury under instructions by the court as to his duty to exercise care for his own safety. It may not be said that the testimony introduced established contributory negligence as a matter of law.
As above noted, the testimony relied on by plaintiff indicates that defendant undertook to drive through the intersection against a red light. In Winckowski v. Dodge. 183 Mich 303, 312, it was said:
“Contributory negligence cannot be imputed to a plaintiff for failure to anticipate negligent acts of a defendant — no one need anticipate an unlawful act.”
Such statement has been repeatedly quoted in subsequent decisions. Among cases in accord therewith are: Guina v. Harrod, 275 Mich 393; Suarez v. Katon, 299 Mich 38; White v. Herpolsheimer Company, 327 Mich 462 (26 ALR2d 667); Knoellinger v. Hensler, 331 Mich 197. Under the testimony in the case the matter of plaintiff’s contributory negligence presents a question concerning which reasonable men might reach different conclusions. Such being the case said question is factual in nature and should be disposed of accordingly. Nezworski v. Mazanec, 301 Mich 43; Staunton v. City of Detroit, 329 Mich 516.
The judgment entered in defendant’s favor on the directed verdict is reversed and the cause remanded for a new trial, with costs to appellant.
Kelly, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred with Carr, J. | [
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Kelly, J.
(dissenting). Defendants appeal from an order of the workmen’s compensation appeal board reversing the hearing referee and granting plaintiff “$28 per week from April 29, 1953, and until the further order of the department.”
Appellants contend that the accident did not cause a direct injury to plaintiff’s nervous system; that plaintiff’s mental or emotional disturbance was collateral to the injury; that the appeal board could not make a continuing award where plaintiff had not testified as to her condition for 21 months previous to such award; that the appeal board erred in granting plaintiff leave to take additional testimony after an award had been entered by a hearing referee.
Plaintiff, a punch-press operator, suffered an injury on January 23, 1953, when a 15-pound weight, or counterbalance, fell off the punch press and struck plaintiff between her shoulder blades.
Plaintiff filed her application for hearing and adjustment of claim in June, 1953, claiming a shoulder injury. The hearing on said application was commenced in Jackson, Michigan, on February 16, 1955, and the deputy commissioner called attention to the continuances, and stated that “testimony of the plaintiff was filed and agreement to redeem liability was filed; commission’s order entered denying the petition.”
When the hearing commenced, plaintiff being duly sworn, her attorney asked permission to make the following statement on the record:
“Prior to my entry in this matter Mrs. Redfern was attended medically as the result of this injury, she had Doctor Ferversky, and I am also associated with counsel representing her. That after we were in the case and representing her Doctor Ferversky was instrumental in sending her to Mayo Brothers in Rochester, Minnesota; that prior to that she had been examined in the University of Michigan Hospital, and I was instrumental in getting her into a clinic in Detroit, and after that she went down to the Ford Hospital and there she was seen by Doctor Hart and Doctor Murphy, as well as by other doctors. This I know about, and as the consequence we have not been able to obtain any medical associating any disability due to this injury and I have endeavored to the best of my ability under the compensation law to explain the situation to my client, that she must have medical testimony and that we could not obtain it, so we entered into settlement. I am merely making that statement as a matter of protection of myself, and on the other hand I am willing to proceed with the case, with the testimony she has to the best of my ability.”
February 24,1955, the deputy commissioner determined that the plaintiff received an injury arising out of her employment on January 23,1953, and was entitled to total disability compensation from January 24, 1953, to February 17, 1953, and partial disability compensation from March 19, 1953, to April 29, 1953, and in his finding the referee stated :
“The plaintiff’s disability, if any, subsequent to April 29,1953, is not related to the personal injury of January 23, 1953.”
March, 1955, plaintiff filed an application for review and in June, 1955, requested permission to take additional testimony, raising for the first time the question of hysterical conversion. Plaintiff’s request was granted by the appeal board.
Depositions of Doctors Karr, Corley and Murphy were taken on November 9, 1955, and filed with the board on December 14, 1955. No other testimony was taken or introduced.
The opinion of the board granting plaintiff compensation from April 29, 1953, until further order, and reversing the award of the referee, contained the following paragraphs, which set forth the board’s reasons for arriving at its conclusion:
“The plaintiff has been totally disabled since April 29, 1953. Of that there is no question. Apparently there is no organic explanation for her complaints. Nothing happened to her that should have caused more than a few weeks of disability. However because of her particular personality she developed a conversion hysteria precipitated by her injury which accounts for her disability. The disability is real and there is no question of malingering involved. The only question is whether or not this kind of disability is compensable. * * *
“Applying the standard of the Schneyder Case (Schneyder v. Cadillac Motor Car Co., 280 Mich 127) we believe that a direct relationship is established where the pattern of disability can be directly traced to the injury without any break in the chain of causa tion. We believe tbe relationship is indirect when the precipitating factor is a subsequent collateral consideration or event.
“There is no break in the chain of causation in this case. The plaintiff’s disability and hysteria is directly traceable to her injury as the precipitating factor. She, therefore, is entitled to compensation at the rate of $28 per week from April 29, 1953, and until the further order of the department. A continuing award is being made because the evidence clearly indicates that her disability was likely to continue. The award of Referee Huber is reversed in accordance with this opinion.”
Appellants in their brief answer the appeal board as follows:
“The appeal board was limited to such medical testimony as appeared in the record. Since all medical witnesses testified that plaintiff’s mental or emotional disturbance was not the direct result of the injury the case at bar rests squarely on the Schneyder Case and is not compensable.”
In its opinion, the appeal board quoted from the Schneyder Case, 280 Mich 127, 129, as follows:
“In 86 ALR 961, note, the cases are collected. It is said there does not seem to be any general rule governing such conditions but ‘generally no award will be made where the chain of causation is broken.’ However, the authorities plainly indicate the logical distinction:
“(1) Where the accident has a direct effect upon the nervous system, all the results thereof, both physical and mental, go to make up disability and determine compensability;
“(2) But where the mental disturbance is collateral to the injury, does not arise directly from it but is due to worry, anxiety or brooding over the accident or its effect or compensation for it, or the like, it is not compensable.”
Dr. Jean P. Karr, a witness for plaintiff, graduated from the University of Illinois in 1947, and has practiced in Jackson, Michigan, since April, 1953. He testified that internal medicine is his specialty, with neurology as another field of interest.
Dr. Karr testified that he was of the opinion plaintiff was under great emotional strain and fatigue before the accident and that her condition was one of long standing which had progressively become worse; that he examined plaintiff in 1954, approximately 18 months after the injury, and he did not find any structural damage to the nervous system; that the mental disturbance did not arise directly from the injury; that plaintiff’s inability to work is 80% psychological and 20% vague physical complaints, and “fatigue perhaps is the physical reason for her not working.” The following questions were asked by plaintiff’s attorney and answered by Dr. Karr :
“Q. In other words, Doctor, you feel that this condition that now disables Mrs. Redfern is a condition of long standing, which has progressively become worse, is that right?
“A. Yes, if I understand your question correctly.
“Q. And in a sense the injury she received in January, 1953, at the Sparks-Withington plant co.uld have aggravated that situation?
“A. In all honesty I must answer yes to that. * * #
“Q. Doctor, in response to a question by counsel, you answered that her mental disturbance was independent of the injury. However, the mental disturbance that she had could have been, her condition could have been aggravated by the injury, is that right?
“A. I wonder — this is a medical reflection — I wonder if the term aggravate is as appropriate as precipitated.
“Q. Well, the mental disturbance could have been precipitated then?
“A. Brought out into the open, that is what I would say.
“Q. Where it was hidden before, and the injury brought it out to where it is noticeable to everybody, even a layman?
“A. Yes, that is correct, as I see it. * * *
“Q. I presume in the realm of neurological and psychiatry that frequently people that do have a mental condition, mental disturbance, to the average person it is not apparent until some intervening trauma might bring it out?
“A. That is often the case.
“Q. Do you feel that would have happened here when she had this accident at the factory?
“A. Yes, as a precipitating influence.”
The following questions were aslced Dr. Karr by the attorney for defendants:
“Q. Then to go back to our original question, in your opinion the woman’s mental disturbance, is it not collateral to the injury?
“A. If I understand your use of the word collateral, the answer is yes. * * *
“Q. Doctor, to go back to my original question, in your opinion this mental disturbance is collateral to the injury, it does not arise directly from it, but is due to worry, anxiety, brooding and other—
“A. Personality defects.
“Q. Personality defects?
“A. That is correct.”
The deposition of Dr. Bernard M. Murphy, who has practiced in Jackson, Michigan, since 1935, and specializes in neurology, was taken by defendants. Counsel for appellants, in his brief,-calls to our attention the following questions asked Dr. Murphy and the answers given:
*‘Q. Will you tell us what your findings were?
“A. Well, I did a physical and neurological examination and found nothing organically wrong. I felt from a psychiatric view she was suffering from anxiety, and I made a diagnosis of psychoneurosis, ■anxiety and hysteria. * * *
“Q. Then this condition, which I have used the word collateral, isn’t it due to personality defects, and worry, anxiety, brooding, and all those things that are not directly caused by the accident?
"A. I believe that is true.
“Q. Doctor, in your opinion would a diagnosis of conversion hysteria be collateral, rather than direct?
“A. That’s right, I don’t believe the injury directly caused this emotional problem she has. * * *
“Q. Doctor, these reactions are they, in your opinion, the direct result of the injury, or are they collateral to the injury?
“A. They are collateral to the injury.”
Counsel for appellee calls to our attention the following questions he asked Dr. Murphy and the doctor’s answers:
“Q. You gathered from the history she gave you, and your examination physically and neurologically, it was your diagnosis that she had a mental disturbance, and apparently a mental disturbance for some time back in the past?
“A. I would use the term emotional disturbance.
“Q. Yes. A person having an emotional disturbance like she had, and the superimposing of an injury like she had at the factory, would that precipitate or bring the situation out in the open where it would be noticeable to almost everybody, could a small injury • do that ?
“A. I think almost any precipitating anxiety might.”
Defendants also introduced the deposition of Dr. Cecil Corley, who specializes in internal medicine in the city of Jackson, and who saw plaintiff on the day of the accident and 5 times thereafter, the last time being on February 18, 1953. In their brief, appellants call to this Court’s attention the following questions asked by their counsel and Dr. Corley’s answers thereto:
“Q. In your opinion was this woman’s mental disturbance collateral to the injury?
“A. Yes.
“Q. In your opinion was this woman’s mental disturbance due to worry, anxiety and brooding over the alleged accident?
“A. Well, I think it was at the time, on the basis of the long, prolonged stress and strain she had been through for a number of years. # * *
“Q. Doctor, just to make it clear in the record, in your opinion, did this woman’s mental disturbance, is it collateral to the injury, rather than directly the-result of the injury?
“A. Yes, sir.
“Q. And by collateral, you mean it is due to worry, anxiety or brooding?
“A. Yes._ * * *
“Q. But it is your opinion the mental disturbance is collateral to the injury?
“A. Yes.”
Appellee calls to our attention the further testimony of Dr. Corley:
“(Cross-examination) Q. But in your opinion could this accident have precipitated — or legally we use the word aggravated, that mental disturbance?
“A. Well, I think basically she has an unstable personality, which any upset she might have. If she had a divorce at that time, or anything happen at that time might have upset her, anything which might occur. * * *
“(Redirect examination) Q. Doctor, this injury and its relation to the mental disturbance, could it not be a mere coincidence ?
“A. Well, it could be a mere coincidence, it could be, as has been brought out, another straw on the camel’s back, it was a lack of any structural injury, followed by the extreme complaints which she had, by structural injury I mean more than a minor bruise, followed by the extreme complaints she had, which brands the thing as gross exaggeration of all symptoms, and I have no doubt there were other problems confronting her at that time, but I didn’t go into them, or into the psychiatric aspect of it. I saw her 5 times, and considered the injury healed, and that was the end of it.
“Q. But it is your opinion the mental disturbance is collateral to the injury ?
“A. Yes.”
The 3 doctors, Karr, Corley and Murphy, testified that plaintiff’s hysteria was collateral to rather than a direct result of the injury.
Dr. Karr answered in the affirmative a question that included the word “aggravate” but later changed “aggravate” to “precipitate.” The doctor defined “precipitate” to mean: “Brought out into the open” so that the mental disturbance that existed in a hidden form before the accident would be apparent after the accident.
Plaintiff, defendant, and the appeal board agreed that Schneyder v. Cadillac Motor Car Co., 280 Mich 127, is of controlling importance. In the Schneyder Case this Court remanded the matter to the appeal board for reconsideration, with the statement (p 130) :
“The issue is whether and how far plaintiff’s present disability is the direct result of the physical injury to his foot, excluding the consequences of mental disturbances collateral to and not arising directly from the physical hurt.”
In the Schneyder Case, Justice Wiest wrote a concurring opinion in which he quoted from a Connecti cut case (Kowalski v. New York, N. H. & H. R. Co., 116 Conn 229, 236 [164 A 653, 86 ALR 957]), as follows (pp 131, 132):
“ ‘To hold that wherever an accident involves depression of spirits the neurasthenia and its results are attributable to the accident would “be opening a door which we ought not to open. * * * There must be some direct evidence of the insanity being a result of the accident; something more than a subsequent occurrence.” ’ ”
In Thornton v. Luria-Dumes Co-Venture, 347 Mich 160, we stated that the writ of certiorari to review proceedings to recover workmen’s compensation brings to the Supreme Court questions of law only and does not permit the weighing of evidence to determine whether administrative findings of fact offend rules governing clear weight and preponderance of evidence as on appeals from circuit court, the Court being obligated to accept an administrative finding of fact that is supported by any evidence whatever to sustain it. See, also, CL 1948, § 413.12 (Stat Ann 1950 Rev § 17.186).
Agreeing and using this principle of law, we have searched the record for any evidence to support the workmen’s compensation appeal board’s finding that plaintiff’s disability is compensable because the “hysteria is directly traceable to her injury.” We find no such evidence.
The appeal board’s order of November 14, 1956, should be vacated and set aside. Because of this ruling appellants’ remaining claimed errors need not be considered.
Dethmers, C. J., and Carr, J., concurred with Kelly, J.
Edwards, J.
Anna Redfern, plaintiff in this case, was employed by defendant Sparks-Withington Company for almost 9 years. On January 23, 1953, she was seated and bending forward working at her punch press when a 15- to 20-pound steel weight struck her between the shoulder blades, apparently having fallen from the top of the machine.
Since then, except for 1 month, she has not worked. She describes loss of feeling and strength in her right hand and arm, swelling and pain in the right shoulder and neck area, and general fatigue. Although doctors in 5 of this country’s finest hospitals and clinics have provided no relief and found no organic cause, they have diagnosed her condition as what may be summed up in the term “conversion hysteria.”
For a definition of this term, Blakiston’s New Gould Medical Dictionary refers us to “conversion reaction” which they characterize as “a mental defense mechanism whereby unconscious emotional conflict is transformed into physical disability. * * * Conversion reactions may include anesthesia (anosmia, blindness, or deafness), paralysis (paresis, aphonia, monoplegia, or hemiplegia), or dyskinesis (tic, tremor, posturing, or catalepsy). Formerly classified as conversion hysteria.” Blaldston’s New Gould Medical Dictionary (2d ed) (1956), pp 280 and 1012.
On June 22,1953, after defendants had ceased voluntary compensation payments, plaintiff filed a claim for workmen’s compensation claiming continuing disability as a result of the injury of January 23, 1953. Mrs. Redfern’s claim for workmen’s compensation was granted by the referee but only to the extent of 2 months’ total and partial disability. Subsequent to this hearing (in which no medical testimony was introduced), on motion granted by the appeal board the parties took depositions from 3 doc tors. Having the benefit of this testimony, the appeal board reversed, finding:
“The plaintiff bas been totally disabled since April 29, 1953. Of that there is no question. Apparently there is no organic explanation for her complaints. Nothing happened to her that should have caused more than a few weeks of disability. However because of her particular personality she developed a conversion hysteria precipitated by her injury which accounts for her disability. The disability is real and there is no question of malingering involved.”
In this State, the rule is well established by a line of authority dating from 1922 that where occupationally-incurred injury to the body and/or shock to the nervous system produces a neurosis resulting in disability or death, it is compensable. Klein v. Len H. Darling Co., 217 Mich 485; Cazan v. City of Detroit, 279 Mich 86; Laichalk v. Chicago Pneumatic Tool Co., 308 Mich 298; Hayes v. Detroit Steel Casting Co., 328 Mich 609.
This record shows, however, without dispute, that claimant suffered from an emotional or personality disturbance which existed prior to the injury and was so severe in nature that without it the injury would not have resulted in the extended disability. This Court has decided, however, that a pre-existing disease does not bar recovery of workmen’s compensation when subsequent occupational injury aggravates the condition to the point of disability or precipitates the disability. Sheppard v. Michigan National Bank, 348 Mich 577; Coombe v. Penegor, 348 Mich 635.
That this holding is in harmony with views in other jurisdictions is indicated by Professor Larson:
“Conversely, when there has been a physical accident or trauma, and claimant’s disability is increased or prolonged by traumatic neurosis or hysterical paralysis, it is now uniformly held that the full disability including the effects of the neurosis is compensable. Dozens of cases, involving almost every conceivable kind of neurotic or hysterical symptom, have accepted this rule.” [Citing cases.] 1 Larson, Workmen’s Compensation Law, § 42.22.
Appellants argue that the case of Schneyder v. Cadillac Motor Car Co., 280 Mich 127, qualifies our rule by delineating 2 classes of cases: Those where neurosis is the direct result of the injury which are compensable; and those where it is collateral to the injury (as, for example, where neurosis follows brooding and worry over inability to regain employment, or over the outcome of compensation proceedings) which are not compensable. The case does, indeed, make this distinction. Its continued validity we do not pass on now because it is not in question under the facts of this case. Cases subsequent to Schneyder reiterate that — as with other problems of causation — whether the case is one of direct or collateral relation of injury to neurosis is a question of fact to be determined by the appeal board. Kubialc v. Briggs Manfg. Co., 286 Mich 329; Karwacki v. General Motors Corporation, 293 Mich 355; Laichalk v. Chicago Pneumatic Tool Co., supra; Hayes v. Detroit Steel Casting Co., supra.
Here, the appeal board found:
“There is no break in the chain of causation in this case. The plaintiff’s disability and hysteria is directly traceable to her injury as the precipitating factor.”
Testimony supporting such a finding was elicited from Drs. Karr and Murphy:
“Q. In other words, Doctor, you feel that this condition that now disables Mrs. Redfern is a condition of long standing, which has progressively become worse, is that right?
“A. Yes, if I understand your question correctly.
“Q. And in a sense the injury she received in January, 1953, at the Sparks-Withington plant could have aggravated that situation?
“A. In all honesty I must answer yes to that. * * *
“Q. * * * Her condition could have been aggravated by the injury, is that right?
“A. I wonder — this is a medical reflection — I wonder if the term aggravate is as appropriate as precipitated.”
“Q. * * * A person having an emotional disturbance like she had, and the superimposing of an injury like she had at the factory, would that precipitate or bring the situation out in the open ? * * *
“A. I think almost any precipitating anxiety might.”
True enough, testimony is available which could support an opposite finding. It is not, however, the proper function of this Court to act as trier of the facts. On the contrary, findings of the appeal board are binding upon this Court where, as here, there is any competent evidence to support them. CL 1948, § 413.12 (Stat Ann 1950 Bev § 17.186); Paton v. Port Huron Engine & Thresher Co., 214 Mich 130; Weenink v. Allen Electric & Equipment Co., 276 Mich 561; Thornton v. Luria-Dumes Co-Venture, 347 Mich 160.
Appellants raise other questions. A period of 12 months intervened between the date of the order of the appeal board entering a continuing award and the date medical testimony was taken by deposition. Citing the holding in the first White Case (White v. Michigan Consolidated Gas Co., 342 Mich 160), appellants contend there was no evidence to support the entry of a continuing award for that period. We believe there was sufficient testimony from which the appeal board could have concluded that, due to the nature of the illness and the repeated unsuccessful attempts to alleviate it, the disability was a continuing one. This Court has disposed of the question of lack of authority to enter such an award in the second White Case (White v. Michigan Consolidated Gas Co., 352 Mich 201).
Defendants further complain that plaintiff’s original application for hearing and adjustment made no mention of disability from post-traumatic neurosis, that this question was introduced for the first time on plaintiff’s motion before the appeal board to take additional testimony, and that she should not be allowed to “broaden” her claim at this stage of the proceedings. Plaintiff’s original application did, however, claim “injury to * * * nerves.” Appellants had notice of the injury and knowledge of claimant’s condition. The neurosis was not new to them. See Nagy v. National Can Co., 277 App Div 1083 (100 NYS2d 807).
The compensation law provides:
“If a claim for review is filed # * * the compensation commission shall promptly review the decision, together with such records as may have been kept of its hearing, and shall also, if desired, hear the parties, together with such additional evidence as the compensation commission in its discretion may allow them to submit.” (Emphasis supplied.) CL 1948, § 413.11 (Stat Ann 1950 Rev § 17.185).
That Mrs. Redfern has been disabled since her injury has always been clear. The additional testimony taken pertained to the cause of that disability. We do not view this as a new disability but hold that the taking of this additional testimony was well within the statutory discretion of the appeal board.
Finally, error is assigned because the appeal board, after the expiration of a period of time in which neither side filed briefs (although transcripts were on file), proceeded to decide the case without notice to either side and without briefs. When plaintiff failed to file a brief within the time allowed, defendants had at least 2 courses of action open to them — to file their own brief, or to move to dismiss the appeal. Either course would have protected their interests. Failing such action, it must be held to be within the discretion of the appeal board to dispose of such matters on its own motion. This Court does not favor delay in the disposition of workmen’s compensation proceedings on the part of any party.
The award is affirmed. Costs to appellee.
Smith, Black, Voelker, and Kavanagh, JJ., concurred with Edwards, J.
See, however, Larson’s comment, § 42.24, p 620. | [
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Kavanagh, J.
Detroit-Michigan Stove Company, a Michigan corporation, finding itself in financial difficulties, which had resulted in extremely heavy losses for the years 1953 and 1954, and finding themselves in default on the payments due their bank, on a loan obtained to enable them to remain in business, and faced with the threat of foreclosure of the bank loan and the prospect of being forced into bankruptcy, employed defendant Joseph Freedman, an investment counselor for the Cleveland and Barbour families (majority stockholders of the corporation) to assist them in finding a way out of their financial difficulties.
Defendant Freedman negotiated a merger with Welbilt Stove Company, a New York corporation, which was a successfully operated and financially strong corporation, and which had just completed several years in which the corporation had made large profits. The results of the negotiations carried on by defendant Freedman culminated in a merger agreement dated February 23, 1955, and executed by the officers of both corporations on that date following authorization of the board of directors. The merger contract was subsequently approved by the shareholders of the respective corporations, and, particularly, by the Detroit-Michigan Stove Company shareholders on the 19th day of May, 1955.
Pursuant to the merger contract, the shareholders of the respective merging corporations exchanged their shares for shares of common and-preferred stock in the successor Welbilt Corporation, a Michigan corporation.
It would appear that the successor corporation operated with considerable success in view of the fact that dividends were paid beginning early in 1956.
Plaintiff, on April 17, 1956, filed his bill of complaint against the defendants Alexander P. Hirsch, Henry Hirsch, Arthur Richenthal, Welbilt Corporation, a Michigan corporation, and Joseph Freedman. On the same day plaintiff caused to be entered an order of publication and summons to be issued directing nonresident defendants Alexander P. Hirsch,' Henry Hirsch, and Arthur Richenthal, residents of the State of New York, to appear and answer.
On May 28, 1956, plaintiff filed an amendment to the bill of complaint, adding other nonresident members of the Hirsch families to the list of defendants, and caused a like' order of publication to be entered and summons to be issued as to such defendants.
On June 27,1956, a motion was filed by defendants Alexander P. Hirsch, Henry Hirsch, and Arthur Richenthal, all appearing specially, to vacate and quash the order of publication and summons dated April 17, 1956, and service thereof. On the same date (June 27th) a similar motion was filed by the additional nonresident defendants, all appearing specially, in respect to the order of publication and summons dated May 28, 1956.
Plaintiff filed further amendments to the bill of complaint, and on September 27, 1956, caused a new order of publication to be entered as to all the nonresident defendants.
On March 14, 1957, a motion was filed by all the nonresident defendants, all appearing specially, to vacate and quash the order of publication dated September 27, 1956, and service thereof.
In the meantime, defendants Welbilt Corporation, a Michigan corporation, and Joseph Freedman, both residents of Wayne county, Michigan, having appeared generally, filed a motion on June 27, 1956, to dismiss the bill of complaint. Successive amendments by plaintiff'to the bill of complaint on September 26, 1956, and March 14, 1957, and a complete amended bill of complaint filed July 23, 1957, made it necessary for defendants Welbilt Corporation and Joseph Freedman to file amendments to their motion on October 3, 1956, March 15 and July 29, 1957, respectively.
On July 31,1957, the circuit judge signed an order (filed August 1, 1957) vacating and quashing the several orders of publication, summons and service thereof as to the nonresident defendants, and an order (also filed August 1,1957) granting the motion of defendants Welbilt Corporation and Joseph Freedman to dismiss the amended bill of complaint.
Plaintiff filed separate claims of appeal from these orders.
Plaintiff’s bill of complaint, as amended, alleges that he, a resident of Washtenaw county, sues individually as the representative of the class of former preferred and common stockholders of the Detroit-Michigan Stove Company, a Michigan corporation. He alleges that he has been a common stockholder of Detroit-Michigan Stove Company at different times in the past, and particularly by purchase of 300 shares of common stock in March, 1954, 400 shares in April, 1955, and 50 shares of preferred stock in October, 1955.
It is alleged that defendant Joseph Freedman is an investment consultant in Detroit and a resident of Wayne county; defendant Arthur Richenthal is an attorney in New York and a resident of that State; and defendants Alexander P. Hirscli and Henry Hirscli, and all other defendants, with the exception of Welbilt Corporation, a Michigan corporation, whose home office is in Detroit, Michigan, are residents of the State of New York, and were, with their families, the sole owners of the entire capital stock of Welbilt Stove Company, a New York corporation, at the time of its merger with the Detroit-Michigan Stove Company.
Plaintiff, as representing the said class of stockholders, referred to above, filed his action for an accounting and other relief against the successor corporation, Welbilt Corporation, a Michigan corporation, and said defendants Alexander P. Hirsch and Henry Hirsch, alleging that the merger carried out under the agreement of February 23,1955, which plaintiff contends to be unfair, inequitable, unreasonable, and, in effect, a constructive fraud on the former preferred and common stockholders of Detroit-Michigan Stove Company, who have, as plaintiff believes, for the most part, exchanged their said shares for shares in the successor Welbilt Corporation, in ignorance of their rights and best interests.
Plaintiff in his bill of complaint further alleges that the holders of the outstanding $1,014,920 par value of preferred stock of Detroit-Michigan Stove Company received under said merger contract preferred stock of the successor corporation of a total par value of $761,190; and that the holders of the outstanding $948,007 par value of common stock of said Detroit-Michigan Stove Company received under said merger contract common stock of the successor corporation of the same total par value of $948,007; that outstanding preferred and common stock of Detroit-Michigan Stove Company represented net tangible assets of that company having a book value as of December 31, 1954, of $3,964,693; that for said $3,964,693 net assets (which, upon information, plaintiff shows had a fair valne of upwards of $5,000,000), and for 2 other alleged intangible asset values consisting of the New York stock exchange listing of the Detroit-Michigan Stove Company common shares and certain corporate federal profits tax benefits or carry-overs (resulting from heavy operating losses of Detroit-Michigan Stove Company in 1953 and 1954), both of said items together being alleged to have an additional value of upwards of $2,000,000, plaintiff’s class of Detroit-Michigan stockholders received a total alleged fair value of $4,079,190 (consisting of stock received from the successor corporation, being $761,190 par value of preferred shares therein and common stock having a total fair value on the basis of recent quotations on the New York exchange of $3,318,000).
Also, that the holders of the $142,500 par value of preferred stock of Welbilt Stove Company (of New York) received under said merger contract preferred stock of the successor corporation of the total par value of $2,000,000; and that the holders of the outstanding’ $150,000 par value of common stock of the said Welbilt Stove Company received under said merger contract common stock of the successor corporation of the par value of $3,250,000; that said outstanding preferred and common stock of Welbilt Stove Company represented net tangible assets of that company having a book value as of December 31, 1954, of $5,776,033 (according to the balance sheet attached as an exhibit to the merger contract of February 23, 1955); that for said $5,776,033 net assets, the defendants Hirsch received a total alleged fair value of $13,375,000 (consisting of stock received from the successor corporation, being $2,000,000 par value of preferred, stock, and common stock having a total fair value on the basis of recent quotations on the New York stock exchange of $11,375,000).
Plaintiff further alleges that, upon information, the merger was so maneuvered that the Michigan shareholders received less than 3/5 of their asset values paid in, and the New York stockholders received over 2-1/2 times their asset values turned in; that, upon information, said valuable rights and interests of plaintiff’s class of stockholders of Detroit-Michigan Stove Company were concealed from them at all times by the defendants who acted together, with other agents unknown by plaintiff, in said concealment, and by various devices, means, assertions, and suggestions in the months of December, 1954, and January and February, 1955,' that there was a time limit in February, 1955, when, by pressure of company debts and other difficulties and danger's, this hurried-up merger must be'accepted, or Detroit-Michigan Stove Company would be ruined and' its stockholders would lose everything; that by these circumstances and others which will be brought out on final hearing, especially the sudden knowledge of “great danger in 1954,” the Detroit-Michigan Stove Company stockholders became so bewildered and frightened and confused that they never knew what the merger contract of February 23, 1955, meant, and were persuaded thereby and by other influences to follow blindly the advice of defendant Joseph Freedman.
Nowhere in the bill of complaint or amended bills of complaint does the plaintiff allege any facts upon which any court could infer that the class of shareholders which he purports to represent were in any way fraudulently induced to enter into the merger agreement. The best that can be said for the pleadings of plaintiff is that he asserts a number of conclusions and beliefs without stating any facts upon which these conclusions and beliefs are founded.
Plaintiff contends that the lower court erred in granting the motion of the nonresident defendants against whom he had prayed that the court determine the fair value of and advantage to defendants, and compel the payment thereof to defendant Welbilt Corporation and/or the interests of plaintiff’s class of Detroit-Michigan Stove Company stockholders, as constituted prior to said merger, the tangible assets consisting of property shown on the balance sheet, the value of the New York stock exchange listing, as well as the federal income and excess profits tax carry-overs or advantages resulting from operating losses of the former Detroit-Michigan Stove Company in the years 1953 and 1954.
Plaintiff further contends that the court erred by holding that the action was in personam and not in rem and that jurisdiction could not be obtained over nonresidents by publication in a personal action; that the court erred in granting the motions of the Welbilt Corporation and defendant Freedman for the reason that no specific relief was asked against defendant Freedman, and since the plaintiff had not made the directors of the old merged Detroit-Michigan Stove Company parties defendant, and he was asking for a reformation of the merger agreement, his bill of complaint did not state a cause of action against the successor Welbilt Corporation.
In the case of Dean v. Kellogg, 294 Mich 200, this Court, speaking through Justice Butzel, said (pp 206, 207) :
“The question of jurisdiction over necessary parties to the suit or of the subject of action is controlling. Defendant John L. Kellogg, a resident of Illinois, is asked to account for alleged wrongs to Warren-Teed and Seedtown; he has not been personally served within the State, nor has he submitted to the jurisdiction of this Court. We are powerless to render any personal decree against him; our process, personal or constructive, is confined to the limits of this State so far as acquiring personal jurisdiction over nonresidents. Outhwite v. Porter, 13 Mich 533; McEwan v. Zimmer, 38 Mich 765 (31 Am Rep 332); Booth v. Connecticut Mutual Life Ins. Co., 43 Mich 299; Howard v. Coon, 93 Mich 442; Stewart v. Eaton, 287 Mich 466, 477 (120 ALR 1354); Pennoyer v. Neff, 95 US 714 (24 L ed 565). The dismissal of the bill was correct as to him.”
Justice Bijtzel went on to say (p 209):
“In the case before us, there is no res in control of the court, the case having been begun as though it were the usual equity action for an accounting. In a proceeding in rem, the court- disposes of property owned by the parties or of some interest therein.”
Justice Carr, writing in Specialties Distributing Co. v. Whitehead, 313 Mich 696, said as follows (pp 699, 700):
“Plaintiff’s alleged cause of action rests on the claim that defendant Whitehead is indebted to plaintiff under the contract between the parties. No relief could be granted without a determination as to the fact of the indebtedness and the exact amount thereof. This characterizes the proceeding as one in personam rather than in rem.”
Justice Carr went on to say (p 700):
“The principles of law, recognized and applied in Eisner v. Williams, 298 Mich 215, are controlling. Plaintiffs there brought suit in equity to obtain cancellation of an agreement to pay attorney fees to defendant Williams, and to secure payment of such fees to plaintiffs rather than to defendant Williams. The latter was served with an order of appearance by registered mail but was not served with process within the State, nor did he enter a general appearance. He did, however, appear specially and move to dismiss, claiming in substance that the matters in issue could not be litigated, without personal service on him within the jurisdiction, or voluntary general appearance on his part.”
The situation in the case at bar is analogous to the cases above mentioned. The trial court could not properly determine that there had been an overreaching on the part of the nonresident defendants, nor could he require an accounting or alter or change the terms of the contract without obtaining personal jurisdiction over the defendants, either by service of process within the jurisdiction or by voluntary appearance. Therefore, the court correctly granted the motion to dismiss as to the jurisdiction over the nonresident defendants.
As to the motion to dismiss of defendant Freedman and Welbilt Corporation, certainly, since no relief is prayed against Freedman, there can be no question about the granting of the motion- as to him.
In the case of Deem v. Kellogg, supra, this Court affirmed an order granting a motion to dismiss by certain resident defendants, who had been served ivith process, on the ground that certain other necessary parties were nonresidents and the court had no jurisdiction over such necessary parties.
In the case at bar, plaintiff sought to have reformation of the merger contract. The Detroit-Michigan Stove Company, and its directors, at the time of the merger were not parties to this action. The Welbilt Stove Company, a New York corporation, is not a party to this action. Since it is impossible to obtain jurisdiction over the nonresident named defendants, and they cannot be reached by service of Michigan process, the relief prayed for in the bill of complaint could never be granted. And, since the court did not have jurisdiction over the necessary parties to grant the relief prayed for, it did not err in granting the motion to dismiss of Welbilt Corporation. Dean v. Kellogg, supra. Detroit-Michigan Stove Company is not a party to this action.
There is no doubt of the power of a court of equity, in case of fraud, abuse of trust, or misappropiiation of corporation funds, at the instance of a single stockholder, to grant relief and compel a restitution. Miner v. Belle Isle Ice Co., 93 Mich 97 (17 LRA 412). Any recovery runs in favor of the corporation, for the shareholders do not sue in their own right. Talbot v. Scripps, 31 Mich 268; Horning v. Louis Peters S Co., 202 Mich 140; Curtiss v. Wilmarth, 254 Mich 242. They derive only an incidental benefit. Davenport v. Dows, 85 US (18 Wall) 626 (21 L ed 938). If the defendants account, it must be to the corporation and not to the shareholders. As to the defendants charged with defrauding it, the corporation is an indispensable party. Cicotte v. Anciaux, 53 Mich 227; Coxe v. Hart, 53 Mich 557: McMillan v. Miller, 177 Mich 511.
The decree must protect the defendants against any further suit by the corporation, and this will not be true unless it properly be made a party to the action. The usual practice is to make the beneficiary corporation a party defendant, although in substance it is a party plaintiff. In the instant case, the accounting, if any, would be to the Detroit-Michigan Stove Company. Under the above authorities, the motion should have been granted.
It should be also called to attention that nowhere in the bill of complaint are there any acts which constitute fraud which could be relied upon under the theory of Dean v. Kellogg, supra, to permit a shareholder’s derivative suit on behalf of the corporation.
The action of the lower court is affirmed. Costs in favor of defendants.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Voelker, JJ., concurred. | [
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] |
Voelker, J.
Dates are important in this case and there is no lack of them. Prior to June 29, 1940, William G. Gilmore and wife were the owners of all of the lands involved in the various consolidated causes herein, subject to a trust mortgage dated June 25, 1926, and recorded July 2, 1926. The lands ad joined Telegraph Road (US-24) in Dearborn township and were unimproved.
On June 29,1940, Gilmore and his wife executed a quitclaim deed for valid consideration to the corporate trustee, Union Guardian Trust Company, which deed was recorded July 1, 1940. The Detroit Trust Company became a successor in interest.
On August 7, 1940, Gilmore and wife executed a warranty deed conveying the same lands to the then State highway commissioner of the State of Michigan in exchange for $21,200. Said deed was not recorded until April 26, 1946.
The lands were placed upon the tax roll of Dear-born township for the year 1940, wherein the corporate trustee under the trust mortgage was shown as “owner or occupant.”
The taxes on said lands for the year 1940 and subsequent years not being paid, tax foreclosure proceedings followed which culminated in their being bid off to the State on May 4, 1943. The next occurrence concerning the lands was a quitclaim deed by Gilmore and wife to the State highway department, dated January 8, 1944. On January 18, 1944, the Detroit Trust Company for valid consideration also gave the State highway department a quitclaim deed to the lands. These 2 quitclaim deeds were recorded by the highway department on February 16, 1944. (It is important and in fact crucial to note that these 2 deeds were received and recorded within the redemption period following the noted tax sale of May 4, 1943.)
On July 3, 1944, no redemption having been made, the auditor general deeded the lands to the State of Michigan, and said deed was recorded August 17, 1944.
The State land office board (hereafter for brevity sometimes referred to as land board) on February 19, 1945, sold all of the lands involved in each of the causes herein and on April 5, 1945, issued quitclaim deeds to the purchasers of the various parcels. Since that date some of the lands have been resold to other purchasers.
On September 17, 1945, by letter the land board notified the original purchasers of the lands involved (all of whom are defendants and appellees herein) that the highway department had submitted to it photostatic copies of recorded deeds as evidence that the said department had acquired title to the lands prior to the date title had vested in the State, and that under such circumstances the said purchasers did not have a marketable title. The letters requested surrender of the quitclaim deeds given by the land board if not recorded, or reconveyance to it in case of recorded deeds. Tender of the purchase money was also made.
The defendants and appellees having been unwilling to return for cancellation the deeds which they had received from the land board and to accept repayment of the amounts paid therefore, the appellants brought this action to quiet title.
After hearing the trial court dismissed the 'bill of complaint and decreed that the defendants had a fee simple interest in the lands in question and that the noted deeds from the Detroit Trust Company and William G. Gilmore and wife to appellants were null and void as against the defendants and their assigns. This appeal has resulted.
The appellants offer 2 independent arguments concerning the validity of their claimed interests in the lands in question. These arguments will be discussed in the order presented;
Plaintiffs argue first that the quitclaim deed (June 29,1940) by Gilmore to the mortgagee Union Guardian Trust Company (succeeded in interest by the Detroit Trust Company) was only a security device and did not convey absolute title to the lands. They argue further, that when the highway department obtained n warranty deed from Gilmore (August 7, 1940) it therefore obtained an interest in the land, which was later perfected by the noted quitclaim deed from the Detroit Trust Company (January 18, 1944).
This argument is without merit. It is settled law in Michigan that a quitclaim deed, absent clear proof to the contrary, transfers any and all interest in the lands that the grantor may have, whatever its nature. See Kitchell v. Mudgett, 37 Mich 81; Roddy v. Roddy, 342 Mich 66; CL 1948, § 565.3 (Stat Ann 1953 Rev §26.522). No adequate proof to the contrary was made here. Therefore the chancellor was correct in holding that the warranty deed transferred no interest in the lands, for after Gilmore had executed the prior quitclaim deed he simply had nothing left to deed to the State highway department.
The appellants further argue in this connection •that it was ultra vires for the corporate trustee to accept title to the land, thus making the quitclaim ■deed to the mortgagee void and consequently validating the warranty deed to the State highway commis■sioner. However CL 1948, § 487.204 (Stat Ann 1957 Rev § 23.1014) plainly gives the corporate trustee •the power to accept such land titles, thus negating .appellants’ claim of ultra vires.
Appellants’ second main argument is based upon "the land board’s claimed lack of authority to sell the property in question. They fail to tell us precisely why that agency lacked such authority and we modesty allow that we have dredged that on our own. "We find that a legal basis for such lack of authority may be spelled out in a rather new statute not yet interpreted on our point (CL 1948, § 211.371 [Stat Ann 1950 Rev § 7.965(1)]). Notwithstanding appellants’ studied disregard of this possible saving statute in their argument, and indeed their outright ■claims of its invalidity and unconstitutionality in their briefs, we find ironically that this statute becomes the crux of their case and the one possible saving grace for their cause. It is of course elementary that litigants cannot bind us by their interpretation of a statute, however wrong and however much their interpretation, if they persuaded us to follow it, might help them lose their case. We shall now examine this statute in more detail.
Section 1 of the statute provides:
“If the State land office board * * * shall discover before the execution and delivery of a deed or the execution of a contract for the sale of any land, apparent title to which vested in the State of Michigan by virtue of a tax sale, that the State of Michigan, or any board, officer, commission, department, public corporation, governmental subdivision, agency, municipal or quasi-municipal corporation thereof owned any parcel of such land or part thereof or interest therein prior to the apparent vesting of title thereto in the State of Michigan by virtue of a tax sale, it shall be the duty of the State land office board * * * to withhold the same or part thereof so publicly owned, or in which the public had an interest, from public sale, and to notify the auditor general of such withholding and the reason therefor.” (Emphasis added.)
This statute, when read in its entirety, seems clearly to intend that the State of Michigan and the various public subdivisions and agencies there enumerated should not be deprived of lands they have acquired for other purposes even by such gross and obvious negligence on the part of the land board and other State departments and employees as the facts in this case indicate. We note that the statute is entitled, “An act to protect the interest of the public, acquired other than through taxation, in lands under the jurisdiction and control of the State land office board.”
As noted, it appears that the portions of the statute which are controlling in this case have never been interpreted by us. We therefore construe and hold that the word “discover” therein at least includes notice of any interest that other State agencies have in the lands, which, under elementary principles of interpretation, would necessarily include constructive notice by recording. Thus the land board must here be held to have discovered the interest of another State agency or subdivision, namely, the State highway department, when that latter agency had properly recorded its deed. To interpret the statute otherwise would be to impose a subjective rather than an objective test to determine the question of discovery, and also to put a premium upon the studied ignorance or carelessness of State employees. It would in essence be saying to the land board the more time your personnel spends on the coffee break and the less time they devote to their duties of searching the records, the more land you will have authority to sell. We do not think this could have been the intent of the legislature when it enacted this statute and entitled it “an act to protect the interest of the public.” On the other hand, the objective test of constructive notice says that if a State agency or subdivision has properly recorded its deed to the lands in question, the State land office board shall be deemed to have notice of that interest, regardless of how deeply it buries its head in the sand.
Having thus interpreted the word “discover” it follows that the land board must be deemed to have discovered the interest of appellants before it conveyed the lands to defendants by the deeds in question. While it is not necessary here for us to so hold, perhaps one of the implications of our decision is that a purchaser at so-called “scavenger sales” from the State land board may not close his eyes and trust blindly to the authority of the board or the extent or validity of the interest thus acquired.
The next interpretative question to be answered is: Did the appellants own “any parcel of such land or part thereof or interest therein prior to the apparent vesting of title thereto in the State of Michigan by virtue of a tax sale”? The law in Michigan is clear that title does not vest in the State by virtue of a tax sale until the auditor general has deeded the land to the State after the expiration of the period of redemption. See Darby v. Freeman, 304 Mich 459; Langford v. Auditor General, 325 Mich 585.
Tying the facts of this case into the statute we find that the highway department’s acquisition of title to the lands (January 18, 1944) occurred within the tax sale redemption period; that it thus preceded the auditor general’s deed (July 3, 1944) and thus also preceded the vesting of title in the State by approximately 5 months. Therefore the statute applies and must control the result in this case.
It follows that when the land office board executed deeds to the defendants it was acting without authority (for the mandate of the statute is “it shall * * * withhold # * * from public sale”), as a result of which the deeds it delivered to the defendants were void and could convey no possible interest in the land.
Laches plays no controlling part in the result of this case. Laches can scarcely create title where none existed. Defendants having acquired no interest in the land when they purchased it they cannot acquire such by making improvements, paying taxes, or the expiration of time. However compelling these equities' may be, they are no substitute for title acquired according to law.
Lacking a sufficient record, we express no opinion on the question of any possible damages to defend ants (such as return of the purchase price, taxes and assessments paid, and related matters) the subject not having been presented below or briefed here. We merely note the possible question. The decree of dismissal is reversed and the cause remanded for the entry of a decree and for further proceedings not inconsistent with this opinion, including the possible exploration of the question of damages, if any. No costs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, and Edwards, JJ., concurred.
Kavanagh, J., did not sit. | [
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Dethmers, C. J.
Defendant, acting through its employee, Charles Johns, delivered a load of cinder blocks to a site where plaintiff’s employer, a contractor, was erecting a house. The blocks measured-12 by 16 by 8 inches and weighed 45 pounds each. At the contractor’s request, Johns took a shovel, leveled an area of earth which was sandy, placed on it a number of planks, 2 inches thick and 8 or 10 inches wide, in 4 parallel and contiguous rows and piled the blocks on the planks. The blocks were stacked in 3 rows. The center row straddled the joint between the 2 center planks and a row of blocks on each side thereof covered the joint between one of the center and one of the outer row of planks. The 3 rows of blocks touched and apparently supported each other. They were stacked 10 and 11 blocks high. Johns knew that it had rained shortly before, as it did again after, the delivery.. There was testimony that Johns usually stacked blocks in 4 rows to a height of not more than 8 blocks and that, so. stacked, there is less danger of their falling; that a ditch at one end and another pile of blocks. at the other end made it difficult, if not impossible, to remove blocks from either end of the 3 stacks in question. Plaintiff was employed to remove blocks from the piles and make them available to masons constructing the basement wall. Four days after date of delivery he removed the first of the 3 rows, nearest the basement. Then he removed all of the center row, except for 3 blocks, and, while reaching' down for one of these, the third, or farthest and only remaining row of blocks, collapsed, fell upon 'plaintiff and caused him injuries. Plaintiff testified that after he was injured, and while lying on the ground, he observed that the 2 rows of planks, upon which the farthest row of blocks had rested before collapsing, as well as the others, were on uneven ground, and that of those 2 rows of planks the one nearest him was about 1 inch lower than the one just beyond it. Suit is for plaintiff’s resultant damages.
The court below granted defendant’s motion for a directed verdict on the grounds that plaintiff had failed to show negligence on defendant’s part which was a proximate cause of plaintiff’s injuries and plaintiff’s freedom from contributory negligence. Plaintiff appeals, contending that the case presented a question of fact for the jury as to those matters.
There can be no doubt that if the collapse of the pile of blocks was due to Johns’ negligence the latter was a proximate cause of plaintiff’s injury. Testimony, although disputed, that stacking the blocks 10 and 11, rather than only 8, high was contrary to the usual practice; that the higher stacking increased the danger of their falling; that the rows of planks upon which the blocks were piled stood on uneven ground with one row 1 inch-lower than the one beyond it; that it was Johns’ duty to level the ground, place the planks evenly and pile the blocks so that they would not constitute a hazard; that Johns knew the soil was sandy and that it had just rained; all gave rise to a question of fact as to whether Johns was guilty of negligence in stacking the blocks as high as he did and in a manner so that they could not be removed from one end of the pile and whether he negligently failed to level the ground sufficiently or to place the planks at an even height or placed them on wet sand and whether he should have known that this might result in their failing to maintain their original level after the weight of the blocks was superimposed. Accordingly, we think the court erred in finding that, as a matter of law, there was no proof of defendant’s negligence which was a proximate cause of plaintiff’s injuries.
Defendant says that from the fact that the 2 rows of planks were not level on the day of accident an inference may not be drawn that they were uneven á days earlier when the blocks were delivered. In this connection it cites 20 Am Jur, Evidence, § § 158, 210, for the proposition that a presumption of continued existence of a state of things is prospective and not retrospective. It also cites Blank v. Township of Livonia, 79 Mich 1, in which this Court said that there was no presumption, merely because a wooden stringer of a bridge was defective from dry rot on a given date, that it was equally thus defective 7 months earlier when it had been inspected and the defect, so plaintiff contended, should have been discovered. Whatever the construction to be placed on our dicta in that case on the subject of presumption, it is inapplicable here where the problem is not one of presumption but of inference. We are satisfied to hold now that from the fact that the planks were uneven on the date of accident it would not he unreasonable to infer that they were equally so 4 days earlier when the blocks were placed thereon. It would have been entirely competent and reasonable for the jury to have drawn such inference. As for Otto v. Hansen Wholesale Lumber Corp., 331 Mich 37, relied on by defendant, in which this Court said that the negligence of the defendant owner of a pile of lumber is not shown by the mere fact that it fell and injured plaintiff, there having-been no proofs with respect to such negligence, the case is not controlling in the instant case, in which the testimony establishes not only the collapse of the pile of blocks, but also extends to the manner of their being piled by Johns so as to give rise to a question of fact as to whether he was negligent in piling them as he did.
Plaintiff testified that in his 7 years of doing the kind of work in question, he had never removed blocks from a stack in a different manner than he did in this case, that is to say, one row at a time, and that never before had a pile of blocks fallen down while he was so removing- blocks therefrom. There was evidence that, because of the manner in which Johns had stacked them, it would have been difficult, if not impossible, for plaintiff to remove blocks from the 3 rows evenly by commencing at one end, and plaintiff testified that he could not have removed them other than in the manner he did. This is sufficient, in answer to defendant’s contention that plaintiff should have known that removal of the 2 rows would have left the third row unsupported and likely to fall, at least to make the question of plaintiff’s contributory negligence, in that respect, one of fact for the jury.
Judgment for defendant reversed and cause remanded for new trial. Costs to plaintiff.
Carr, Kelly, Smith, Black, Edwards, Voelker,. and Kavanagh, JJ., concurred. | [
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Black, J.
Proceeding under CL 1948, § 413.13' (Stat Ann 1950 Rev § 17.187), plaintiff declared in the Genesee circuit on an award of compensation. Validity of the award — once its identity becomes duly established — is not questioned. The sole issue is whether the award has been paid. Such issue came to judicial consideration this way:
The workmen’s compensation commission (now appeal board) found that plaintiff’s decedent came to his compensable death on account of the combined effect of 2 diseases; compensable silicosis and noncompensable tuberculosis. Pitting such finding to the statute requiring an award proportional (CL 1948, §417.8 [Stat Ann 1950 Rev § 17.227]), the board proceeded to find and determine as follows:
“There can be no question, however, considering the medical testimony in its entirety, but that silicosis was the most important factor in bringing on disability and death and for that reason we find that silicosis was at least 50% responsible and we therefore reduce compensation one half.”
By formal order of award dated January 8, 1954, the commission thereupon ordered defendants to “pay to plaintiff compensation of $24 a week for total dependency from June. 19, 1951, until the further order of the commission but not to exceed a period of 200 weeks from the date of the death of the injured employee and not to exceed the sum of $6,000; the defendants shall also pay $300 for the statutory burial benefits.”
Seven days later, and apparently on its own motion, the commission entered an amendatory award-order reading in entirety as follows:
“In this cause the commission having mailed an order on January 8, 1954, and it having come to the attention of the commission that said order failed to limit the maximum amount of compensation payable to the sum of $3,000, and the commission, therefore, believing that an amended order should be entered;
“Therefore, it is ordered that the last paragraph of the order of the commission as mailed January 8, 1954, he and the same hereby is amended to read as follows:
“ ‘It is further ordered that the award of the deputy commissioner in this case be and it is hereby modified and the defendant shall pay to plaintiff compensation of $24 per week for total dependency from June 19,1951, until the further order of the commission, but not to exceed the sum of $3,000. The defendant shall also pay $300 for the statutory funeral benefit.’ ”
Neither order was reviewed, attemptedly or otherwise. Defendants duly paid plaintiff the total sum of $3,000 in accordance, as they claim, with the amendatory order. They also paid the required burial benefit. Plaintiff, claiming here (she was successful in the court below) that the original order is effectively final and that the amendatory order is void for want of authority vested in the commission (now board) to rehear “after a final order is made by the board,” insists that defendants by force of the original order owe' her an additional $1,800 plus interest. Her position is brief-summarized as follows:
“To permit the appeal board to re-decide cases any time a majority of its members changed their ideas on the law would permit them to recapture decisions of appeal board members laid to rest these many years. The decisions of courts and administrative boards must have a date of finality that rights may vest.”
There is no occasion for extended discussion of the known difference between authority to rehear a case or proceeding and authority to correct mistakes appearing in judicial or administrative orders, judgments and decrees. The commission did not rehear or redecide this proceeding. It did promptly correct its own inadvertent error; that of failure to properly limit the total amount payable in accord with the intent of its undisturbed finding of fact. Holding, as we do, that the issue before us is controlled by the rule and the reasoning of McLean v. Eaton Manfg. Co., 286 Mich 285, it is but fair to record indisposition in our quarters toward close or technical limitation of the appeal board’s right to correct errors of above nature.
Defendants, having fully satisfied the award as purposed and recorded by the commission, are entitled to judgment in their favor. The circuit court’s judgment is therefore reversed and the case is remanded for entry of judgment accordingly. Costs to defendants.
Dethmers, C. J., and Carr, Kelly, Smith, Edwards, Voelker, and Kavanagh, JJ., concurred.
The circuit judge held that the second order “amounted to a rehearing and redetermination” and entered judgment for plaintiff.
Plaintiff cites, in support, Tulk v. Murray Corporation of America, 276 Mich 630; Guss v. Ford Motor Co., 275 Mich 30; Martilla v. Quincy Mining Co., 221 Mich 525 (30 ALR 1249) ; Deibel v. Spitzley & Wiedenman Construction Co., 207 Mich 618; and Pocs v. Buick Motor Co., 207 Mich 591. | [
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Voelker, J.
On January 24, 1956, appellant was charged with the crime of gross indecency before the municipal court for the city of Holland. Preliminary examination was held February 23, 1956, and appellant was bound over to the circuit court for Ottawa county: After information was filed in the Ottawa county circuit court, to which appellant entered a plea of not guilty, the prosecuting attorney, on March 9, 1956, filed a petition requesting that respondent be examined by 3 psychiatrists to determine whether he was a criminal sexual psychopathic person. On March 9, 1956, the circuit court entered an order appointing David B. Davis, Adolp F. Dasler and Leonard Rosenzweig, all psychiatrists approved by the State department of mental health, to examine appellant. These proceedings were all pursuant to the authority and procedure specified by statute (CL 1948, §§780.503, 780.504, as amended by PA 1950 TEx Sess], No 25 and PA 1952, No 58 [CLS 1956, §§ 780.503, 780.504, Stat Ann 1954 Rev §§ 28.967(3), 28.967(4)]).
The statutory examination was held in due course and it appears that Dr. Davis did a large part of the questioning of the respondent and that he used hospital records and notes made in connection with his prior private consultation with appellant! These private consultations occurred after' appellant had entered his plea of not guilty in circuit court and had been released upon bond, at which time he placed himself under the care of Dr. Davis for psychiatric treatment. Treatment apparently occurred in January of 1956.
Subsequent to their statutory examination the panel of psychiatrists filed a report in which they found appellant to be a criminal sexual psychopathic person, and hearing was held May 11,1956, before a jury iir the circuit court to determine this issue. Pursuant to such hearing, the jury found appellant to be a criminal sexual psychopathic person, from which finding he’ appeals.
His appeal is based upon alleged error on the part of the trial court at the hearing for determination of his status in permitting the psychiatrists to testify to or with regard to their conclusions as a result of their examination. He also objects to the admission in evidence of their written report containing their findings based upon such examination.
The only issue necessary for decision in this case is raised by appellant’s claim that the entire examination, and accordingly the report and opinion of the psychiatrists as given to the jury, was in violation of the doctor-patient privilege as to communications between them, and thus in violation of appellant’s constitutional rights. Appellant reasons that because he went to Dr. Davis voluntarily and in the ordinary doctor-patient relationship Dr. Davis was therefore disqualified from serving as one of the 3 examining court-appointed psychiatrists because he could not do so without necessarily malting use of confidential communications made to him during the course of his private treatment of appellant.
It is clear, by the people’s own admission, that Dr. Davis did make extensive use of notes taken by him in the course of private treatment, as well as of hospital records made in connection therewith, when he and the other psychiatrists examined appellant pursuant to court order. If disclosure of the confidential communications to the other psychiatrists was improperly made there can be no question but that it had much to do with the other psychiatrists’ view of appellant’s status and consequently was probably largely determinative of their final opinion. In any case we are unable to unravel the extent to which they may have been so influenced.
The question of whether the doctor-patient privilege was waived is of critical importance under these circumstances. Appellant knew the identity of the 3 psychiatrists appointed by the court to examine him and he therefore knew that his own private psychiatrist, Dr. Davis, was among their number. It is urged by the people that, because defendant made no objection prior to the hearing on the question of his psychiatric status, he therefore waived any privilege which he might otherwise be entitled to claim as regards Dr. Davis’ participation. The trial court apparently accepted this view of the matter because he refused to permit cross-examination of Dr. Davis and the other psychiatrists with respect to whether their report and opinion was based upon information obtained from Dr. Davis and based upon his private treatment of appellant. Similarly the trial court indicated that the objection to the psychiatrists’ report and testimony, as based upon confidential communications, came too late when it was first raised at trial. The people take the position here that the whole situation indicates that a clever trap was set by appellant and his attorney by their failure earlier to object to the examination of Dr. Davis as a court-appointed examining psychiatrist, and in saving the objection based upon the claim of privilege until trial. Perhaps such a trap was set, but if so it should be remembered that the successful operation of a trap requires a susceptible victim. The troubling claim of appellant that his constitutional rights were violated in permitting his personal psychiatrist to use confidential information in the psychiatric examination and in testifying for the people, is not answered satisfactorily by the prosecution’s claim that it has been trapped. We do not find that appellant was under any obligation, prior to trial, to raise objections to the appointment of a panel of psychiatrists, and therefore his objection at trial to the testimony of the psychiatrists on the grounds that they were of necessity based, in part, upon confidential communications, was timely. There does not appear to have been any waiver of the privilege.
It follows that the trial court erred in permitting to go to the jury the testimony of the 3 doctors, all of whose evidence was necessarily tainted by their reception of information gained by Dr. Davis in his confidential relationship with appellant. This is particularly so when counsel for appellant strenuously objected at the hearing to the admission of such testimony. If so, it would follow that the court was likewise in error in refusing to permit cross-examination of the psychiatrists as to the extent to which their testimony was based upon the confidential information furnished by Dr. Davis.
If the testimony of the psychiatrists was inadmissible, which it was, there was then no proper basis for the jury’s verdict, because the verdict is necessarily one which must be based upon defendant’s medical status.
We are aware that the testimony of the doctors was not the only evidence of sexual deviation. The jury also heard competent and relevant evidence from 2 lay witnesses, 1 of whom was the boyish victim of appellant’s perverse acts, the other being the officer who participated in the arrest and in the investigation of the case. On the testimony of the yonthfnl victim alone the jury would have been justified, even in the absence of expert psychiatric evidence, of finding that appellant was a sexually aberrant person. It would seem to follow also as a matter of course from the testimony of the victim, particularly when it is coupled with the evidence of the officers, that appellant was carrying lewd photographs when arrested, and that he had signed a statement admitting, in substance, the precise immoral acts committed upon the youthful victim. Without question this evidence would have been sufficient to support a conviction for gross indecency.
But the statute with regard to findings of criminal sexual psychopathological conditions (CLS 1956, §§ 780.503, 780.504 [Stat Ann 1954 Rev §§ 28.967(3). 28.967(4)]) clearly contemplates proceedings such as the instant one only in the event that the 3 psychiatrists appointed by the court find that the accused is suffering from a mental disorder, and is not feeble minded, coupled with criminal propensities to the commission of sexual offenses. The testimony of the lay witnesses certainly supports a finding that appellant had criminal propensities to the commission of sexual offenses. But that is not enough. It is also necessary that a mental disorder be found, and if the testimony of the psychiatrists was incompetent there was accordingly no competent evidence before the jury of mental disorder. The admission of the testimony of the 3 psychiatrists over the objection of appellant was prejudicial error in that it permitted and in fact required the use of confidential information obtained by them through the treatment of appellant by one of their number in the private consultations, noted above. These communications by appellant to Dr. Davis were privileged, and the privilege was not waived, even though appellant could have earlier objected to Dr. Davis’ inclusion on the panel of psychiatrists.
Reversed and remanded for appropriate proceedings not inconsistent with this opinion.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred. | [
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] |
Boyle, J.
This products liability action arose out of injuries sustained in an accident involving the operation of a hand-operated forklift manufactured by defendant. The procedural events leading up to this appeal include two trials and two reversals and remands for new trials by the Court of Ap peals. 3****Plaintiffs John Prentis and his wife, Helen, brought suit alleging both negligence and breach of implied warranty, predicating defendant manufacturer’s liability upon the alleged defective design of the forklift. Although the trial judge included both negligence and breach of warranty in his statement of plaintiffs’ theory of the case to the jury, he refused to give plaintiffs’ requested instructions on breach of implied warranty. A judgment for the defendant, upon a jury verdict of no cause of action, was reversed by the Court of Appeals, which held that the trial court’s failure to charge the jury as requested was reversible error, mandating a new trial. Prentis v Yale Mfg Co, 116 Mich App 466; 323 NW2d 444 (1982).
We granted leave to appeal and limited our inquiry to the following issue: whether the trial judge’s refusal to instruct the jury on breach of warranty was reversible error in this products liability action against a manufacturer for an alleged defect in the design of a product, where the jury was properly instructed on the theory of negligent design.
I
Facts
The facts of this case are not seriously in dis pute. In April of 1970, plaintiff John Prentis, who was employed as foreman of the parts department at an automobile dealership, sustained a hip injury in an accident involving the use of a forklift manufactured by defendant Yale Manufacturing Company and sold to plaintiff’s employer in 1952. The forklift was a stand-up or walking type, termed by defendant a "walkie hi-lo” model, rather than a riding or sit down variety. It was operated by lifting its handle up, much like the handle of a wagon. The forklift was estimated by plaintiff to weigh about two thousand pounds and was powered by a large battery, which had to be recharged every night. The machine was equipped with a hand controlled "dead-man” switch which normally prevented it from moving if the operator let go of the handle or controls.
Mr. Prentis, who was sixty-three years old at the time of the accident, had been working at the automobile dealership for two years prior to his injury, and testified that he had occasionally operated the forklift during that period, although he had never been formally instructed as to its operation by his employer. He testified that he was aware of and had previously experienced problems with the machine. After use for five or six hours, the battery charge would run down and the machine would operate erratically. When the battery was low, Mr. Prentis said he would play the handle back and forth to get the machine to start and when he did this the machine was subject to power surges which he said could throw a person off balance if care was not taken. He testified that prior to his accident, the machine had broken through the garage door of the dealership five or six times due to such power surges.
The accident in which Mr. Prentis was injured occurred late in the day, and he testified that he was aware at the time that the battery charge on the forklift was running low. After using the machine to assist him in placing an engine inside the cargo area of a delivery van, while the forklift was in tow behind him on a slightly inclined ramp leading from the delivery bay, Mr. Prentis attempted to start the machine by working the handle up and down. When the machine experienced a power surge, he lost his footing and fell to the ground. It appears that plaintiffs injuries were a result of the fall only, as the machine did not hit or run over him, but continued past him and stopped when it ran into a parked car. Mr. Prentis received extensive treatment for multiple fractures of his left hip.
Plaintiffs filed suit in August of 1972, alleging negligence, failure to warn, and breach of implied warranty, and the case proceeded to trial in August of 1976. Judgment of no cause of action based upon a jury verdict in favor of the defendant was entered on September 17, 1976, and was reversed by the Court of Appeals in an unpublished opinion dated July 7, 1978. The reversal was based upon a finding that the trial court abused its discretion when it prevented plaintiffs’ expert on human factors from expressing his opinion on the design of the machine in question, because he had no experience with that type of machine. The court based its reversal upon a finding that the excluded testimony was integrally related to plaintiffs’ theory of the case which was a design defect. Denial of leave by this Court on July 19, 1979, resulted in remand for a second trial which commenced on January 16, 1980.
Plaintiffs’ proofs in the 1978 and 1980 cases were identical and included the testimony of both Mr. Prentis and his wife, a treating physician, and two expert witnesses. In the 1980 trial, plaintiffs’ counsel read into evidence the complete testimony of the two experts transcribed in the 1978 trial. The focus of plaintiffs’ proofs at both trials was an alleged defect in the design of the forklift, and the substance of the expert witness’ testimony was that the design of the forklift failed to properly incorporate the operator as a "human factor” into the machine’s function, specifically because it did not provide a seat or platform for the operator. However, in the period between the Court of Appeals reversal and the second trial, Michigan had enacted the "products liability statute,” MCL 600.2945 et seq.; MSA 27A.2945 et seq., which became effective on December 11, 1978, resulting in some confusion as to the proper legal principles to be applied in this case.
During the course of trial, plaintiffs’ counsel requested separate jury instructions on implied warranty and negligence theories, while counsel for defendant requested a unified jury instruction. After considerable discussion and argument and a careful review and analysis of the most recent case law under the new statute, the court instructed the jury on a unified standard of liability by using an amalgam of the common elements of proof under the implied warranty and negligence theories.
The trial judge instructed the jury on:
1) Defendant’s duties and liabilities as a manufacturer:
"A manufacturer of a product made under a plan or design which makes it dangerous for uses for which it is manufactured is . . . subject to liability to others whom he should expect to use the product or to be endangered by its probable use from physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.
”A manufacturer has a duty to use reasonable care in designing his product and guard it against a foreseeable and unreasonable risk of injury and this may even include misuse which might reasonably be anticipated.”
2) Negligent conduct of both plaintiff and defendant:
"Now when I use the word 'negligence* with respect to the Defendant’s conduct, I mean the failure to do something which a reasonably careful person would do or the doing of something which a reasonably careful person would not do under the circumstances which you find existed in this case.
"It is for you to decide what a reasonably careful person would do or not do under the circumstances.
"When I use the words 'ordinary care,’ I mean the care a reasonably careful person would use under the circumstances which you find existed in this case. The law does not say what a reasonably careful person would do or would not do under such circumstances. That is for you to decide.
"Now it was the duty of the Plaintiff in connection with this occurrence to use reasonable care for his own safety, and it was the duty of the Defendant in connection with this occurrence to use ordinary care for the safety of the Plaintiff.”
Following the jury instructions on liability, the court read both parties’ written theories of the case to the jury, including plaintiffs’ claims under both negligence and breach of warranty. The jury panel was then given a special verdict form which first asked the following question:
"Question No. 1: Was the motorized hand truck defectively designed by Yale Manufacturing Company?
"Answer: — (Yes or No).
"(If your answer is no, do not answer any further questions).”
Question No. 1 was answered in the negative by the jury panel, and a judgment of no cause of action was entered by the trial court on February 28, 1980.
Plaintiff filed a timely claim of appeal in the Court of Appeals. On May 20, 1982, the Court of Appeals issued a published per curiam opinion reversing the trial court judgment and remanding for a new trial. Prentis v Yale, 116 Mich App 466; 323 NW2d 444 (1982). The Court of Appeals held that the trial court’s failure to give the properly requested jury instruction on implied warranty was reversible error requiring a new trial. We granted defendant’s application for leave to appeal on June 28, 1983. 417 Mich 1039 (1983).
II
Analysis of the Current Status of the Law Regarding Manufacturers’ Liability for Defective Design
The development of the law of tort liability for physical injury caused by products is perhaps the most striking and dramatic of all the numerous stories in the portfolio of modern tort scenarios. When the societal goal of holding manufacturers accountable for the safety of their products has been threatened by the interposition of technical rules of law, it has been the rules that have gradually given way.
However, this has never meant that courts have been willing to impose absolute liability in this context and from their earliest application, theories of products liability have been viewed as tort doctrines which should not be confused with the imposition of absolute liability. As this Court noted in Piercefield v Remington Arms Co, Inc, 375 Mich 85, 98-99; 133 NW2d 129 (1965):
"Some quibbler may allege that this is liability without fault. It is not. ... [A] plaintiff relying upon the rule must prove a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains. When able to do that, then and only then may he recover against the manufacturer of the defective product.”
Thus while courts have accepted the social policy rationale that those injured by defective products should be compensated for their injuries without being subject to the contractual intricacies of the law of sales, and have agreed that manufacturers can most effectively distribute the costs of injuries, they have never gone so far as to make sellers insurers of their products and thus absolutely liable for any and all injuries sustained from the use of those products.
Like the courts in every other state, whether a suit is based upon negligence or implied warranty, we require the plaintiff to prove that the product itself is actionable — that something is wrong with it that makes it dangerous. This idea of "something wrong” is usually expressed by the adjective "defective” and the plaintiff must, in every case, in every jurisdiction, show that the product was defective. See, e.g., Piercefield, supra.
As a term of art, "defective” gives little difficulty when something goes wrong in the manufacturing process and the product is not in its intended condition. In the case of a "manufacturing defect,” the product may be evaluated against the manufacturer’s own production standards, as manifested by that manufacturer’s other like products.
However, injuries caused by the condition of a product may also be actionable if the product’s design, which is the result of intentional design decisions of the manufacturer, is not sufficiently safe. Conscious design defect cases provide no such simple test. The very question whether a defect in fact exists is central to a court’s inquiry. It is only in design defect cases that a court is called upon to supply the standard for defectiveness. Thus, the term "defect” in design cases is "an epithet — an expression for the legal conclusion rather than a test for reaching that conclusion.” See Wade, On product "design defects” and their actionability, 33 Van L R 551, 552 (1980).
At present, questions related to "design defects” and the determination of when a product is defective, because of the nature of its design, appear to be the most agitated and controversial issues before the courts in the field of products liability. A number of appellate courts, aware that they are engaged in the conscious task of molding the law of products liability, have become concerned that they are not differentiating with sufficient clarity between various theories of recovery in design defect cases. In response, they have sought to devise significant and well-articulated distinctions. At the same time, other courts have become concerned that the differentiation is too great, and have attempted to devise means of keeping the broad scope of liability in check. The result has been several cases in which the standard for liability in the design area has been very carefully examined by courts and often vigorously debated by the judges themselves. A survey of the important recent cases in neighboring jurisdictions suggests something of the creative ferment underlying what has been described as the "rich tapestry” of the developing common law of products liability.
The approaches for determination of the mean ing of “defect” in design cases fall into four general categories. The first, usually ¡associated with Dean Wade, employs a negligence risk-utility analysis, but focuses upon whether the manufacturer would be judged negligent if it had known of the product’s dangerous condition at the time it was marketed. The second, associated with Dean Keeton, compares the risk and utility of the product at the time of trial. The third focuses on consumer expectations about the product. The fourth combines the risk-utility and consumer-expectation tests. While courts have included many other individual variations in their formulations, the overwhelming consensus among courts deciding defective design cases is in the use of some form of risk-utility analysis, either as an exclusive or alternative ground of liability. Risk-utility analysis in this context always involves assessment of the decisions made by manufacturers with respect to the design of their products.
"The law purports to stand as a watchdog to ensure that product design decisions made by manufacturers do not expose product users to unreasonable risks of injury. Thus, in a design defect case, the issue is whether the manufacturer properly weighed the alternatives and evaluated the trade-oifs and thereby developed a reasonably safe product; the focus is unmistakably on the quality of the decision and whether the decision conforms to socially acceptable standards.”
The risk-utility balancing test is merely a detailed version of Judge Learned Hand’s negligence calculus. See United States v Carroll Towing Co, 159 F2d 169, 173 (CA 2, 1947). As Dean Prosser has pointed out, the liability of the manufacturer rests "upon a departure from proper standards of care, so that the tort is essentially a matter of negligence.”
Although many courts have insisted that the risk-utility tests they are applying are not negligence tests because their focus is on the product rather than the manufacturer’s conduct, see, e.g., Barker v Lull Engineering Co, Inc, 20 Cal 3d 413, 418; 143 Cal Rptr 225; 573 P2d 443 (1978), the distinction on closer examination appears to be nothing more than semantic. As a common-sense matter, the jury weighs competing factors presented in evidence and reaches a conclusion about the judgment or decision (i.e., conduct) of the manufacturer. The underlying negligence calculus is inescapable. As noted by Professor Birnbaum:
"When a jury decides that the risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be) it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have. Conceptually and analytically, this approach bespeaks negligence.” Birnbaum, Unmasking the test for design defect: From negligence [to warranty] to strict liability to negligence, 33 Van L R 593, 610 (1980) (quoting Barker v Lull Engineering, supra, p 432) (emphasis added).
The competing factors to be weighed under a risk-utility balancing test invite the trier of fact to consider the alternatives and risks faced by the manufacturer and to determine whether in light of these the manufacturer exercised reasonable care in making the design choices it made. Instructing a jury that weighing factors concerning conduct and judgment must yield a conclusion that does not describe conduct is confusing at best.
The Model Uniform Product Liability Act was published in 1979 by the Department of Commerce for voluntary use by the states. The act adopts a negligence or fault system with re spect to design defects. It is important to examine the rationale underlying the UPLA’s adoption of negligence as the criteria for liability in design defect cases. The drafters rejected, as a reason for application of strict liability to design defect cases, the theory of risk distribution wherein the product seller distributes the costs of all product-related risks through liability insurance. They believe that a "firmer liability foundation” than strict liability is needed in a design defect case because the whole product line is at risk. Furthermore, the drafters believed that a fault system would provide greater incentives for loss prevention.
The approach--of the UPLA has been approved by several commentators, whose analysis is also instructive. First, unlike manufacturing defects, design defects result from deliberate and documentable decisions on the part of manufacturers, and plaintiffs should be able to learn the facts surrounding these decisions through liberalized modern discovery rules. Access to expert witnesses and technical data are available to aid plaintiffs in proving the manufacturer’s design decision was ill considered.
Second, to the extent that a primary purpose of products liability law is to encourage the design of safer products and thereby reduce the incidence of injuries, a negligence standard that would reward the careful manufacturer and penalize the careless is more likely to achieve that purpose. A greater incentive to design safer products will result from a fault system where resources devoted to careful and safe design will pay dividends in the form of fewer claims and lower insurance premiums for the manufacturer with a good design safety record. The incentive will result from the knowledge that a distinction is made between those who are careful and those who are not.
Third, a verdict for the plaintiff in a design defect case is the equivalent of a determination that an entire product line is defective. It usually will involve a significant portion of the manufacturer’s assets and the public may be deprived of a product. Thus, the plaintiff should be required to pass the higher threshold of a fault test in order to threaten an entire product line. The traditional tort law of negligence better serves this purpose.
Fourth, a fault system incorporates greater intrinsic fairness in that the careful safety-oriented manufacturer will not bear the burden of paying for losses caused by the negligent product seller. It will also follow that the customers of the careful manufacturer will not through its prices pay for the negligence of the careless. As a final bonus, the careful manufacturer with fewer claims and lower insurance premiums may, through lower prices as well as safer products, attract the customers of less careful competitors.
We find the formula adopted by the UPLA on the question of defective design to have the merit of being clear and understandable. We recognize that in products liability cases against manufacturers based upon alleged defects in the design of a product, the courts of this state have attempted to avoid both the notion of fault implicit in negligence and the harshness of no-fault implicit in absolute liability. Thus, on the basis of the heritage of contract and sales law underlying concepts of implied warranty, we have in the past approved instructions that attempted to focus a jury’s attention on the condition of a product rather than on the reasonableness of the manufacturer’s conduct or decision. We are persuaded that in so doing in the context of cases against the manufacturers of products based upon allegations of defective design, we have engaged in a process that may have served to confuse, rather than enlighten, jurors, who must ultimately apply understandable guidelines if they are to justly adjudicate the rights and duties of all parties. Imposing a negligence standard for design defect litigation is only to define in a coherent fashion what our litigants in this case are in fact arguing and what our jurors are in essence analyzing. Thus we adopt, forthrightly, a pure negligence, risk-utility test in products liability actions against manufacturers of products, where liability is predicated upon defective design.
Ill
Application to the Facts of This Case
We hold that in this products liability action against a manufacturer for an alleged defect in the design of its product, where the jury was properly instructed on the theory of negligent design, the trial judge’s refusal to instruct on breach of warranty was not reversible error. Such instructions could have created juror confusion and prejudicial error. Indeed, such an instruction would have been repetitive and unnecessary and could have misled the jury into believing that plaintiff could recover on the warranty count even if it found there was no "defect” in the design of the product. See Smith v ER Squibb & Sons, 405 Mich 79, 91; 273 NW2d 476 (1979).
This opinion is limited solely to its facts. We do not suggest that implied warranty and negligence are not separate and distinct theories of recovery; see Squibb, supra, p 98 (Levin, J., dissenting), or that the Michigan products liability statute, MCL 600.2945; MSA 27A.2945, has merged all former products liability theories or causes of action into a single unified "products liability theory.” We do not dispute the generally recognized distinction between the elements of negligence and breach of warranty. We recognize that the negligence theory generally focuses on the defendant’s conduct, requiring a showing that it was unreasonable, while warranty generally focuses upon the fitness of the product, irrespective of the defendant’s conduct. See Squibb, supra, pp 98-99 (Levin, J., dissenting).
This holding is based upon the recognition that under the common law of products liability, in an action against the manufacturer of a product based upon an alleged defect in its design, "breach of implied warranty and negligence involve identical evidence and require proof of exactly the same elements.” See Squibb, supra, p 88. A manufacturer has a duty to design its product so as to eliminate any unreasonable risk of foreseeable injury. Owens v Allis-Chalmers Corp, 414 Mich 413, 425; 326 NW2d 372 (1982). For the lack of reasonable care in the face of such duty, the manufacturer may be answerable in a negligence action. Elsasser v American Motors Corp, 81 Mich App 379, 384; 265 NW2d 339 (1978). When proceeding under a theory of implied warranty, a design defect is established by proof that the product is not reasonably safe for the uses intended, anticipated, or reasonably foreseeable. Dooms v Stewart Bolling & Co, 68 Mich App 5, 14; 241 NW2d 738 (1976), Iv den 397 Mich 862 (1976). For the sale of a product defective in such respect, the seller may be answerable for breach of an implied warranty. Elsasser, supra. Thus, when the issue is liability of a manufacturer who was also the seller, it is inconceivable that a jury could determine that the manufacturer had not breached its duty of reasonable care and at the same time find that the product was not reasonably safe for its reasonably foreseeable uses. The question in either case turns on reasonable care and reasonable safety, and as pointed out by Dean Prosser, the liability of the manufacturer rests "upon a departure from proper standards of care so that the tort is essentially a matter of negligence.”
Applying these principles to the facts of this case, although plaintiffs alleged that their injuries were proximately caused by defendant’s negligence and breach of an implied warranty, their evidence and proofs at trial focused on the single claim that the defendant defectively designed the "walkie hi-lo” forklift, because it failed to provide a seat or platform for the operator. Thus, recovery under either theory required the jury to determine that the forklift was defectively designed by defendant. Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975). The factual inquiry was: whether the design of defendant’s forklift was "unreasonably dangerous” because it did not contain a seat or platform for the operator. See Owens, supra, p 427.
The test for determining whether the design was "unreasonably dangerous” was: whether the alleged defect in the design of the product created an unreasonable risk of foreseeable injury. Elsasser, supra. Stated another way, whether the manufacturer was under a duty to use reasonable care to design a product that was reasonably safe for its intended, anticipated, or reasonably foreseeable uses. Dooms v Stewart Bolling, supra, p 14.
The trial court properly recognized that the standards of liability under the theories of implied warranty and negligence were indistinguishable and that instructions on both would only confuse the jury. Accordingly, the trial judge’s instructions regarding the standard of care and theories of liability properly informed the jury of defendant’s legal duties as the manufacturer of the forklift. The court set forth the necessary elements for determining whether defendant defectively designed the forklift when it stated:
"A manufacturer of a product made under a plan or design which makes it dangerous for uses for which it is manufactured is[, however,] subject to liability to others whom he should expect to use the product or to be endangered by its probable use from physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.
"A manufacturer has a duty to use reasonable care in designing his product and guard it against a foreseeable and unreasonable risk of injury and this may even include misuse which might reasonably be anticipated.”
In essence, the jury was instructed to consider whether the manufacturer took reasonable care in light of any reasonably foreseeable use of the product which might cause harm or injury. Caldwell v Fox, supra.
Therefore we hold that in a products liability action against a manufacturer, based upon defective design, the jury need only be instructed on a single unified theory of negligent design.
The judgment of the Court of Appeals is reversed, and the judgment of the trial court is reinstated.
Williams, C.J., and Ryan and Brickley, JJ., concurred with Boyle, J.
Cavanagh, J., concurred in the result only.
The first took place in 1976, the second in 1980.
The first reversal was based upon the trial court’s exclusion of a portion of the testimony of one of plaintiffs’ expert witnesses on the alleged design defect. The Court of Appeals in an unpublished per curiam opinion concluded that the excluded testimony was "integrally related to plaintiffs’ theory of the case.” The second reversal dealt with the issue on which leave was granted herein.
Plaintiffs requested SJI 25.01, 25.02, 25.21, and 25.23 (current versions at SJI2d 25.01, 25.02, 25.21, and 25.22; SJI2d 25.22 replaced SJI 25.23). SJI2d 25.32 was promulgated and adopted after the 1980 trial. SJI2d 25.22 and 25.32 were also recently amended to reflect the application of comparative negligence in all products liability cases. See 63 Mich Bar J 975 (Oct, 1984).
Dr. Julian Christensen, who held a Ph.D. in experimental psychology with an emphasis on human factors, was presented as an expert in human factors as they relate to control of machines. Dr. Christensen testified that:
"This is a long story but essentially, the idea is that man was not properly integrated into this design. A man had to use it. It was designed for a man to use. It was improperly designed for a man to use safely. I think this booklet that he started to introduce, this evidence is an admission on their part that they realized that they had a very dangerous design here. They had to issue all kinds of warnings in this pamphlet and so on.
"Very essentially, you should not allow man to control this kind of power over the machine. He should have been on a platform on the machine that was properly guarded and so on. If it had been designed that way, he would not be in court today.” Dr. Christensen’s testimony from the first trial was read to the jury.
Plaintiffs’ second expert, Herbert Ludwig, a mechanical engineering professor at Wayne State University, also testified that the forklift was unsafe. He too focused on the separation of man from the machine, explaining that the two constituted separate independent moving systems of a dangerous nature because of the ability of the machine to contact the man. He offered the opinion that the man should have been made “a part of the machine, making it one system whereupon the man who was on the machine and moves with it [which movement] would reduce very greatly completely the ability for the machine to contact the man.”
See fn 3. The request was based in part upon the assertion that the comparative negligence of plaintiff should not be considered because the Michigan products liability statute should not be applied retroactively, and that even if it could be applied to the negligence claim, it should not be considered with respect to the implied warranty claim. These issues were subsequently resolved by this Court’s decision in In re Certified Questions, Karl v Bryant Air Conditioning Co, 416 Mich 558; 331 NW2d 456 (1982), and are no longer disputed here.
This request was based upon the argument that the Michigan products liability statute merged the theories of recovery based on negligence and implied warranty. However, counsel for defendant conceded in oral argument before this Court that: "As to a seller there may very well be [a distinction between negligence and the warranty theory]. . . . [T]here may well be some circumstances where an implied warranty recovery might occur in a case despite the fact that there was no negligence.” But, he maintained that in this case, where the seller was also the manufacturer, and the case was based upon a defect in design of the product, the instructions given blended the negligence and implied warranty theories and were appropriate.
Wade, On product ’’design defects” and their actionability, 33 Van L R 551 (1980).
Since the landmark decision in Henningson v Bloomñeld Motors, Inc, 32 NJ 358; 161 A2d 69 (1960), such firmly imbedded concepts as privity, lack of notice, and the innocent bystander rule have all but vanished as single-factor no-duty tests that immunize a defendant from liability. See, e.g., Piercefield v Remington Arms Co, Inc, 375 Mich 85; 133 NW2d 129 (1965). Other bars such as contributory negligence have been mitigated by application of comparative negligence. See MCL 600.2949; MSA 27A.2949.
We do not agree with Justice Levin’s dissent, post, p 697, that this Court abandoned fault concepts in Piercefield. The concepts repudiated in Pierceñeld were privity of contract and the notice requirements of the uniform sales act. See Piercefield, pp 99-100. See also text accompanying fn 10. Although the Court found the instructions on both negligence and warranty theories proper in Pierceñeld, the basis for liability in that case was an alleged manufacturing defect, an issue not before us in this case. Nor do we interpret the decision in Pierceñeld as an adoption of the concept of strict liability in tort. Justice Levin pointed this out himself in his oft-cited opinion in Cova v Harley Davidson Motor Co, 26 Mich App 602, 612-614; 182 NW2d 800 (1970), where he explained the potential for confusion of "strict” liability with "absolute” liability, which "generally arises without regard to whether there is a "defect,” id., p 613, fn 24. He examined with approval the refusal of Michigan courts to adopt such a potentially misleading and confusing standard.
See, e.g., Piercefield, supra. See also Phillips v Kimwood Machine Co, 269 Or 485, 503-504; 525 P2d 1033 (1974). For some of the more searching analyses of these rationales by law and economic theorists, see Calabresi, The Cost of Accidents (1970); Posner, Economic Analysis of Law (2d ed), §§ 6.11-6.12; Calabresi & Hirschoff, Toward a test for strict liability in torts, 81 Yale LJ 1055 (1972); Coase, The problem of social cost, 3 J Law & Econ 1 (1960); Ehrlich & Posner, An economic analysis of legal rulemaking, 3 J Leg Studies 257 (1974); Henderson, Extending the boundaries of strict products liability, 128 U Pa L R 1036 (1980); Klemme, The enterprise liability theory of torts, 47 U Colo LR 153 (1976); Landes & Posner, The positive economic theory of tort law, 15 Ga L R 851 (1981); Posner, A reply to some recent criticisms of the efficiency theory of the common law, 9 Hofstra L R 775 (1981); Symposium on efficiency as a legal concern, 8 Hofstra L R 485 (1980); A response to the efficiency symposium, 8 Hofstra L R 811 (1980).
See, e.g., Parsonson v Construction Equipment Co, 386 Mich 61, 64-65; 191 NW2d 465 (1971), and cases cited therein.
Birnbaum, Unmasking the test for design defect: From negligence [to warranty] to strict liability to negligence, 33 Van L R 593, 598 (1980); Traynor, The ways and meanings of defective products and strict liability, 32 Tenn L R 363 (1965). Traynor calls this the "deviation-from-the-norm test.” Id., p 367.
See Twerski & Weinstein, A critique of the uniform product liability law — A rush to judgment, 28 Drake L R 221 (1978-1979), for analysis of the many problems implicit in distinguishing between manufacturing and design defects for the purpose of imposing liability.
In observing the struggle of courts and commentators to define the contours of actionable design defects Professor Twerski noted:
"It may now be true that defect, like obscenity in Justice Stewart’s definition, will be discovered by sense impression. Unfortunately T know it when I see it’ will not suffice as a judicial standard for products liability.” Twerski, From defect to cause to comparative fault — Rethinking some product liability concepts, 60 Marq L R 297, 304-305 (1977) (referring to Justice Stewart’s concurrence regarding the definition of "obscenity” in Jacobellis v Ohio, 378 US 184, 197; 84 S Ct 1676; 12 L Ed 2d 793 [1964]).
Most of the literature on products liability of the past decade has focused on establishing standards for design defect. See Birnbaum, fn 12 supra; Epstein, Products liability: The search for the middle ground, 56 NC L R 643 (1978); Henderson, Judicial review of manufacturers’ conscious design choices: The limits of adjudication, 73 Colum L R 1531 (1973); Henderson, Expanding the negligence concept: Retreat from the rule of law, 51 Ind L J 467 (1976); Henderson, Manufacturers’ liability for defective product design: A proposed statutory reform, 56 NC L R 625 (1978); Henderson, Renewed judicial controversy over defective product design: Toward the preservation of an emerging consensus, 63 Minn L R 773 (1979); Henderson, Process constraints in tort, 67 Cornell L R 901 (1982); Hoenig, Product designs and strict tort liability: Is there a better approach?, 8 SW L R 109 (1976); Keeton, Products liability — Design hazards and the meaning of defect, 10 Cumb L R 293 (1979); Phillips, The standard for determining defectiveness in products liability, 46 Cin L R 101 (1977); Schwartz, Foreward: Understanding products liability, 67 Cal L R 435 (1979); Twerski, Seizing the middle ground between rules and standards in design defect litigation: Advancing directed verdict practice in the law of torts, 57 NYU L R 521 (1982); Twerski, From risk-utility to consumer expectations: Enhancing the role of judicial screening in product liability litigation, 11 Hofstra L R 861 (1983); Twerski, Weinstein, Donaher & Piehler, The use and abuse of warnings in products liability — Design defect comes of age, 61 Cornell L R 495 (1976); Wade, fn 7 supra.
See, e.g., Barker v Lull Engineering Co, Inc, 20 Cal 3d 413; 143 Cal Rptr 225; 573 P2d 443 (1978), in which the California Supreme Court attempted to distinguish strict liability from negligence in its reexamination of the concept of defect in design defect cases. At least one commentator has observed that "in so doing, [the California Supreme Court] has further confused the delineation between strict liability and negligence concepts.” Birnbaum, fn 12 supra, p 601.
See, e.g., Brady v Melody Homes, 121 Ariz App 253; 589 P2d 896 (1978).
See Twerski & Weinstein, A critique of the uniform product liability law — A rush to judgment, fn 13 supra, p 223, for discussion of these cases. See also the debate among members of the New Jersey Supreme Court in Suter v San Angelo Foundry & Machine Co, 81 NJ 150; 406 A2d 140 (1979).
This has been characterized as a risk-utility test with imputed knowledge of all risks "knowable” at the time of manufacture or sale. See Wade, On the nature of strict tort liability for products, 44 Miss L J 825, 834-835 (1973).
See Keeton, Manufacturer’s liabUity: The meaning of "defect” in the manufacture and design of products, 20 Syracuse L R 559, 569-571 (1969). This approach imputes knowledge at the time of trial, even if the risk was unknowable at the time of manufacture or sale. Thus, the disagreement between Wade and Keeton is over the time factor. Keeton would hold a manufacturer liable when the risks of use of its product exceed its utility, based upon information available at the time of trial, even if those risks were unknowable at the time of manufacture or sale. Wade would not.
See 2 Restatement Torts, 2d, § 402A, Comment i. This test is said to have its origin in contract and warranty principles and has been severely criticized because of the haphazard subjectivity involved in its application. See Birnbaum, fn 12 supra, pp 611-618. But see Twerski, From risk-utility to consumer expectations, fn 14 supra.
A number of courts have embraced a combined standard. See, e.g., Caterpillar Tractor Co v Beck, 593 P2d 871, 885 (Alas, 1979); Barker v Lull Engineering Co, 20 Cal 3d 413, 432; 143 Cal Rptr 225; 573 P2d 443 (1978); Suter v San Angelo Foundry & Machine Co, 81 NJ 150, 170-171; 406 A2d 140 (1979).
These include: placing the burden of proof on defendant once plaintiff has made a prima facie case, see, e.g., Barker, supra, and imputing knowledge of the danger to the manufacturer, see, e.g., Suter, fn 21 supra, p 172.
See, e.g., Caterpillar Tractor Co, fn 21 supra (alternative ground); Barker, supra (alternative ground); Suter, fn 21 supra (alternative ground); Micallef v Miehle Co, 39 NY2d 376; 384 NYS2d 115; 348 NE2d 571 (1976) (exclusive ground); Wilson v Piper Aircraft Corp, 282 Or 61; 577 P2d 1322 (1978) (exclusive ground). It should be noted that these cases were decided in jurisdictions that have adopted the doctrine of strict liability in tort which this Court has never expressly adopted. See fn 9. However, this distinction is not fatal to our analysis. See fn 25 and accompanying text.
Twerski, Weinstein, Donaher & Piehler, Shifting perspectives in products liability: From quality to process standards, 55 NYU L R 347, 359 (1980). Evaluation of trade-offs may take into account factors such as design or performance requirements, the effects of those requirements on reducing hazards, the utility and cost of the product, and technological capabilities. Id., p 357.
Prosser, Torts (4th ed), § 96, p 644. This discussion took place in the context of strict liability in tort, which, contrary to the assertions of Justice Levin in his dissent, this Court has never adopted. See post, p 697 (Levin, J., dissenting), see also fn 9. However, as Prosser emphasized in the quoted passage, even in jurisdictions that have adopted the strict liability doctrine, the proper test for determining a manufacturer’s liability for defective design is negligence.
44 Fed Reg 62,714 (1979) (hereinafter UPLA).
Although the act does not specifically include use of the word "negligence,” the drafters characterize the design defect portion of the model act as having "its roots in the law of negligence . . . put into modern and appropriate product liability terminology.” UPLA, § 104, analysis, citing United States v Carroll Towing Co, 159 F2d 173 (CA 2, 1947) (the Learned Hand formula). The balancing test provided by the UPLA for determination of design defect, and the list of evidence deemed especially probative in making that evaluation, clearly requires a determination as to whether the manufacturer acted reasonably under all of the circumstances. It is a fault concept. Id., § 104(B). See also Elfin, The changing philosophy of products liability and the proposed model uniform product liability acts, 19 Am Bus L J 267, 291 (1981).
UPLA, § 104 analysis.
See Elfin, fn 27 supra, pp 293-294; Birnbaum, supra, pp 593-594.
Cf. Jorae v Clinton Crop Service, 465 F Supp 952 (ED Mich, 1979). As we noted in In re Certiñed Questions, Karl v Bryant Air Conditioning Co, fn 5 supra, p 567, "Our reading of the statute does not require us to determine whether the Legislature completed the possible confluence of products liability negligence and implied warranty into one cause of action or whether two separate actions still remain extant.”
Thus, as defense counsel has conceded, see fn 6, the only time the distinction between implied warranty and negligence may have any significance in design defect cases, is in determining the liability of a seller who is not also the manufacturer of a product. See, e.g., Bronson vJL Hudson Co, 376 Mich 98; 135 NW2d 388 (1965). We also are not required to determine whether the two theories are separate in cases alleging defects in manufacturing.
Prosser, Torts (4th ed), § 96, p 644. See also text accompanying fns 24-26.
We thus approve the use of the recently adopted version of SJI2d 25.32, but disapprove of the use of SJI2d 25.22 in the case of products liability actions against the manufacturer of a product where the action is based upon an alleged design defect. Directed verdict forms should also be corrected to reflect these changes. | [
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Moore, J.
The plaintiff, a married woman 65 years of age, in company with her husband and a niece, Esther Yarington, and a lady friend, Mrs. Young, both of Buffalo, on October 26, 1919, went to Westwood Inn, a public place, owned and operated by defendants, for a dinner, and it is her claim that after stepping over the threshold of the main door, she caught her foot in a hole in the matting or runner spread from the door sill to a cigar case, to prevent mud being carried into the dining room on rainy days. She fell and dislocated her shoulder and claims to have also hurt her hip in the fall. The defendants claim there was no defect in the rug. After the plaintiff put in her testimony, and again after all the testimony was in, the defendants asked for a directed verdict. The case was submitted to a jury which returned a verdict for $1,250. A motion for a new trial was made and overruled. The case is brought here by writ of error.
The important question is stated by counsel as follows:
“The defendants contend in this cause that there was no question of fact raised by the testimony, upon which the jury could find them guilty of negligence and that no inference or presumption of negligence did arise from the facts in evidence to warrant the court in charging as in paragraph 3, that they might find that defendants had either actual or constructive notice or knowledge of the existence of the defect and to predicate or base a verdict thereon.” Citing Holmes v. United Theatres Co., 186 Mich. 548.
It may be well to quote some of the testimony:
“We entered by the main door from the Michigan avenue side; the main entrance. I don’t remember 'whether my niece opened the door or whether it stood open, and as I stepped in the door I caught my foot in a hole in the runner just inside the door. * *
“It was between 2:30 and 3 o’clock in the afternoon when we got there. The accident occurred just as I stepped inside the door. I did not get a foot from the door. I just stepped inside, and got possibly two steps, was all. The door opens in and leads into a long corridor. You go right out of there into the dining room. It was quite light in there. I think it was my right foot that caught in the rug when I took the first step into the hall. I went in first, then Mrs. Young and the others.
“Q. And in falling now, did you — could you get your foot out of this hole in time to save yourself?
“A. I had to kick my foot loose, when they went to get me up, I had to kick my foot loose.
“Q. From what?
“A. From this hole in the rug.
“Q. What kind of a looking hole was it, what did it look like to you, the appearance of it?
“A. Well, of course in the condition I was in, I did not take particular notice of that.
“Q. No?
“A. But I knew my foot was caught in the runner, and all I could say was, ‘Oh that rug, that rug,’ and when I said that they went and picked it right up off the floor and carried it away out of sight. * * * When I went out of the place the rug had been removed.
“Q. Well, you refer to it now as a rug, at least I have referred to it as a rug. Was it a rug, or was it one of those fiber runners?
“A. I should imagine it was one of those fiber runners. It was worn through the center. I should imagine it was a yard wide and it ran from the door to the show cases. * * *
“Q. Did you see the rug as it lay on the floor — was it lying on the floor there?
“A. I saw the rug—
“Q. Saw the rug? .
“A. After I caught my foot in it.
“Q. After you caught your foot in it?
“A. Yes. * * *
“Q. Well, now, was it a matter of where you pushed this runner ahead of you and created what might be called a bulge, or a condition of the mat or the runner, that you pushed it ahead of you, was that the trouble, Mrs. Yarington?
“A. No, sir; no, sir; I stepped right in. It seemed to be perfectly smooth, and I stepped right in and caught my foot in the hole as I stepped inside of the door, caught my foot right in the hole of the runner.
“Q. Are you positive of that Mrs. Yarington?
“A. Yes, sir; yes, sir; yes, sir.”
We quote briefly from the testimony of the niece:
“We went up on the veranda and my aunt entered the door first. I held it open for her from the rear.
“Q. Yes?
“A. And she went in, she had taken about one step when her foot caught in this grass runner, grass matting that was across the floor, and as she fell she tried to untangle herself but could not, and her foot— or, her shoulder went against the show case, which was there and dislocated it, and she fell over, sort of on her back.
“Q. Now, what kind of a matting was this, or what kind of a strip was this that was there?
“A. Well, it was about 2% feet wide, I should imagine, a strip that one would ordinarily use on a door — or on a—
“Q. Of what was it made, could, you tell, or what did it look like?
“A. Well, grass matting, I should call it.
“Mr. Dohrman: A what?
“A. A grass matting, it was a Japanese matting, it was old and dirty, and I think it had red stripes in it. I cannot tell definitely.
“Q. Do you recall particularly the character of the goods it was made of?
“A. Yes, sir.
“Q. Now did you observe it, as to what its condition was with reference to whether there was a hole in it there?
“A. Yes, there was a hole, it was about 10 inches in diameter.
“Q.What?
“A. It was about 10 inches in diameter and very ragged around the edge — this hole was.
“Q. And state whether or not that is what caught the foot of your aunt?
“A. Yes, that is what caught the foot of my aunt.
“Q. And when that happened — now, just what — did. you see her .fall?
“A. Yes, sir.”
There was similar testimony from two other witnesses. There was testimony on the part of the defendants that the rug was got in March and was used whenever it was muddy; that on many days 450 to 500 guests were fed at the inn, most of whom presumably passed over this rug.
The accident, as we have already seen, happened the last of October. This testimony easily distinguishes the case from Holmes v. United Theatres Co., supra. The case is more like Nephler v. Woodward, 200 Mo. 179 (98 S. W. 488), where it was held in a case not nearly so favorable for the plaintiff as the instant one that the case was one for the jury.
A more serious question is presented by that part of the charge which reads:
“There has been no testimony of any aggravation of any prior condition of the plaintiff, so that you will not consider that, but only the pain and suffering, the interference with her duties, her household duties, up to the present time and for such further time as you believe the condition will continue, not to exceed in all a period of eleven years, that being by the mortality tables the expectancy of life of this plaintiff. * * *
“You will, of course, not use or exercise any sympathy or prejudice in arriving at your verdict, but if you find, under these statements of law that I have given you, that the plaintiff should recover, then you will award her, as I say, such a reasonable amount as you believe will fairly compensate her for the pain and suffering and the interference with her ordinary household and other duties for her expectancy in life.”
Counsel says in relation to these quotations:
“That the court erred in charging the jury that they could award damages to plaintiff, a married woman, for interference with her household and other duties, probably needs no argument here. It was repeated and emphasized and did undoubtedly have an influence on, and was considered by the jury in reaching the amount of their verdict.
“Loss of services are recoverable by the husband in a separate action. Berger v. Jacobs, 21 Mich. 215, 219; Tunnicliffe v. Railway Co., 102 Mich. 624, 628 (32 L. R. A. 142).”
In his motion for a rehearing counsel did not give this charge as one of the reasons. Counsel for appellee says;
“It is finally claimed by appellants that the court charged that plaintiff, a married woman, could recover any damages due to interference with her household duties. This claim is more fanciful than real. No evidence was introduced in the case and no claim was made by the plaintiff for any such damages. Evidence was introduced in the case, showing the inability of the plaintiff to perform her duties after her accident, but such testimony was only introduced to prove the extent of her physical injury. It will be conceded that no argument was made to the jury on any such element.”
An examination of the record will show there is a basis for this claim. Eighteen months had elapsed between the time of the accident and the trial. The testimony offered on the part of the plaintiff including an X-ray expert shows serious injuries which continued to the time of the trial. We think the quotations made from the charge should not have been given (Berger v. Jacobs, and Tunnicliffe v. Railway Co., supra), but we are also satisfied that the error is not reflected in the verdict.
Judgment is affirmed, with costs to the appellee.
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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Wiest, J.
This is an action upon a Michigan standard fire insurance policy issued to plaintiff by defendant company and covering household furniture, furnishings, etc. A fire occurred in the basement of plaintiff’s house, and while none of the furniture or furnishings were destroyed a greasy smoke injured the household effects. Plaintiff presented a schedule of his claimed damages and the adjuster for the company demanded an appraisal of the loss in accordance with the terms and conditions of the policy. Thereupon the parties agreed upon appraisers and stipulated that their estimate of the damage should be binding. The appraisers selected an umpire, but his services were not required as the appraisers agreed and made an award as follows:
“We have carefully examined the premises and remains of the property hereinbefore specified, in accordance with the foregoing appointment, and have determined the sound value immediately preceding the fire to have been one thousand dollars,- and the loss and damage to be one hundred seventy-four and 46/100 ($174.46) dollars.”
Claiming that the award was so inadequate - and unjust as to show bias and prejudice and a failure to make due investigation of the facts, that the appraisal and award should be declared void, plaintiff brought this action and upon trial before a jury succeeded in having his damages assessed at $1,000.
By plea and timely objections defendant insisted that plaintiff was bound by the award and could not attack the same except in a court of equity. The evidence fails to disclose any fraud on the part of the appraisers. Upon motion of defendant the trial court entered judgment non obstante veredicto in favor of plaintiff for $174.46, that being the amount of the award. Plaintiff brings the case here by writ of error.
The following questions are presented:
(1) Does the statute make the appraisal and award conclusive and binding upon the parties, precluding an action at law to determine the amount of the loss?
(2) Does the award become conclusive by the parties entering into the appraisal ?
(3) Can the validity of the appraisal be inquired into in an action at law or must resort be had to a bill in equity?
It is contended that the statute (Act No. 256, Pub. Acts 1917, pt. 4, chap. 2, § 6), providing that the award of the appraisers shall determine the amount of loss or damage, and that:
“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, nor unless commenced within twelve months next after the liability shall have accrued,”
does not make the award binding and conclusive and does not preclude an action at law on the policy to determine the amount of the loss. This is the pivotal question in the case.
The provision of the statute relative to method of determining the loss and consequent extent of liability of the company is meaningless if no one is bound thereby, and the award can be cast aside and an action at law bring the assessment of the loss anew before a jury. Instead of avoiding litigation this would but stretch it out and the appraisal and award would be no more than a senseless preliminary to a law suit.
We had occasion in the late cases of Palmer v. Insurance Co., 217 Mich. 292, and Jackson v. Insurance Co., 217 Mich. 301, to pass upon the principle here involved, and we held that the remedy to avoid an award, if any, is in equity and not in an action at law.
Counsel for plaintiff urges that:
“Actions at law on policies of insurance to determine the amount of the loss or any other question arising thereunder are properly triable and only triable in the common law courts with a right to a jury. It is a constitutional right of the assured to have his case so tried. To the extent, therefore, that this act shall be construed to deprive the plaintiff of the right of trial by jury it is unconstitutional and void.”
The legislature may prescribe a standard form of insurance policy and fix therein terms, conditions, obligations and method of determining liability and procedure to enforce the same, and when such has been done, insurance thereunder becomes a matter of contract subject to such statutory regulations, and an insured cannot successfully claim that his constitutional right to a jury trial has been taken away. His contract takes away such trial, and if the statute should not so provide the remedy is with the legislature and not the courts.
Plaintiff also contends that the title to the act of 1917 does not indicate the purpose of abrogating the constitutional right of trial by jury, and the act is, therefore, void. As before pointed out the act does not abrogate the) constitutional right of trial by jury. Plaintiff’s contract of insurance, voluntarily entered into, made binding upon him the lawful and time-honored method of determining his loss or damage as fixed by statute and without- trial by jury. This was followed by express agreement, adopting the statutory method and resulting in his obtaining an appraisal of his damages. With such appraisal standing unimpeached he cannot in a suit at law treat the statutory provision, and his agreement thereunder for appraisal of his damages, as without any determinative or binding force.
The learned circuit judge was clearly right in entering the judgment for the amount of the loss or damage determined by the appraisers. Plaintiff cannot plant any right to maintain this suit upon the failure of the appraisers to state separately the sound value and loss or damage of each item of the policy.
The judgment is affirmed, with costs to defendant.
Fellows, C. J., and Bird, Moore, and Steere, JJ., concurred with Wiest, J. | [
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Fellows, C. J.
At the spring election held April 5, 1920, in the township of Montague, Muskegon county, it was voted to organize the township into a single school district pursuant to Act No. 117, Pub. Acts 1909, as amended (2 Comp. Laws 1915, § 5909 et seq.). On July 12th following defendants were elected trustees of such district. On February 25,1921, plaintiff, a resident and taxpayer of the township, filed this information in the nature of quo warranto, leave so to do having been granted by the circuit judge. In her petition she alleges that the school district has not been legally formed. She does not claim the office of trustee and by her petition bases her right to relief solely on the invalidity of the organization of the district. By their pleadings defendants insisted that the proceedings could not be maintained because the petition was not filed within 30 days after the election of April 5th. The trial judge disposed of the case on its merits, dismissing the petition, and plaintiff brings the case here for review. We shall not review the merits of the case as the defendants are clearly right in their contention that the proceedings must be instituted within 30 days after the elec tion. In Youells v. Morrish, ante, 194, we considered the effect to be given sections 13551, 13552 and 13553, 3 Comp. Laws 1915, and held that the practice therein provided should be followed in a case identical with the instant case.
The judgment is affirmed.
Wiest, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Sharpe, J.
The plaintiff, a man 56 years old, was, on October 24, 1918, driving a horse and wagon to the north on Fifteenth street in the city of Detroit. He was in the employ of Lowrie & Robinson, lumber dealers. He was familiar with the surroundings. Fifteenth street intersects Warren avenue. This avenue has a double line of street car tracks, operated by the defendant. Cars on the north side travel westerly, and those on the south side easterly. Defendant’s Warren car house is three blocks to the west. Defendant has air stations on both sides of the avenue between Fourteenth and Fifteenth streets. Plaintiff approached the intersection about 5 o’clock in the afternoon. The cars leave defendant’s car house on the east-bound track very frequently at this hour. They stop to take air before proceeding on their trip. As plaintiff approached the crossing, he stopped and waited for three east-bound cars to pass and also a truck being driven in the same direction. The last of the three cars stopped with its rear end slightly protruding into the traveled portion of Fifteenth street, which was 26 feet in width at this point. Plaintiff’s view to the east was entirely obstructed by this car. After waiting, as he claims, for five or six minutes, he testified that he looked along the trolley wire, which he could see over the standing car, and also through the glass on it, and could see no signs of an approaching car; that he listened and heard no sound of a gong or rumble of the car wheels; that he then attempted to cross, passing close to the standing car, and as soon as he was able to see the track on the north side of the street he discovered a ear, which approached him so rapidly that he was unable to get across, his wagon was struck by it and he thrown out and very severely injured. Plaintiff’s witnesses testified the car was traveling from 12 to 15 miles per hour, while defendant’s witnesses claim its rate of speed was from 2 to 4 miles per hour.
Plaintiff was taken to a hospital and the bill for hospital and doctor’s services, amounting to $130, was paid by the insurance company which had furnished indemnity insurance to plaintiff’s employers. Plaintiff claims he was to return this money in case he recovered damages from the defendant. When the plaintiff had rested, and also at the conclusion of the proofs, defendant’s counsel moved for a directed verdict. The decision on these motions was reserved under the Empson act (3 Comp. Laws 1915, § 14568), and the case submitted to the jury, who rendered a verdict in plaintiff’s favor for $5,840. Defendant’s motion for a judgment non obstante veredicto was overruled, as was also its motion for a new trial. The assignments of error will be considered in the order discussed by defendant’s counsel in their brief.
Was Plaintiff Guilty of Contributory Negligence? Defendant had no greater right to the use of the street at this crossing than had the plaintiff. The car which struck plaintiff had come from the south on Fourteenth street and then curved sharply onto Warren avenue and ran west. At the rate at which it was traveling, as testified to by plaintiff’s witnesses, this car would have traveled the distance between Fourteenth and Fifteenth streets, approximately 330 feet, in about 20 seconds. Had plaintiff alighted from his wagon and walked to the point from which he could have obtained a view to the east on the north track, he could not have seen the car in time to be warned of its approach had he returned to the wagon and attempted the passage across. It is true that he could not see the approaching car from where he stopped. He waited five or six minutes to permit the car obstructing his view to move onward. It did not do so. He looked at the trolley wire. The approach of a car would be indicated by the movement of the trolley pole thereon. He saw none. He looked through the windows of the standing car as best he could. He listened, but heard no sound of an approaching car. Whether or not he exercised that care which an ordinarily prudent person would exercise under the circumstances and the surroundings was, we think, a question for the jury.
The decisions of this court relied on by defendant (Doty v. Railway Co., 129 Mich. 464; Clark v. Railway, 168 Mich. 457; Davis v. Railway Co., 191 Mich. 131; Blatnikof v. Railway, 202 Mich. 69) are clearly distinguishable. These were all cases in which a passenger, who had alighted from a street car, passed onto the second track without looking for the approach of a car thereon.
Was There Evidence of Defendant’s Negligence? There was testimony tending to show that the car which caused plaintiff’s injury was traveling from 12 to 15 miles per hour and that no gong was sounded. In view of the condition of the street, congested as it was by defendant’s cars, and the fact that one car obstructed the view to the east on Warren avenue, we find no error in the submission of this question to the jury. See Ommen v. Railway Co., 204 Mich. 392, and cases cited.
Was the Verdict Against the Overwhelming Weight of the Evidence? The trial court concluded it was not and with, his conclusion we agree. Plaintiff’s testimony was corroborated in all its essentials by that of apparently disinterested witnesses.
Had Plaintiff Elected to Proceed under the Workmen’s Compensation Act? Section 15 of part 3 of the act (2 Comp, Laws 1915, § 5468) provides:
“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.”
Section 4 of part. 2 (2 Comp. Laws 1915, § 5434) provides:
'“During the first three weeks after the injury the employer shall furnish, or cause to be furnished, reasonable medical and hospital services and medicines when they are needed.”
Defendant insists that the plaintiff by permitting the insurance compaify to pay his hospital and doctor’s bills exercised the option given him by the act to proceed thereunder against his employer for compensation. He made no claim for compensation under the act. There was clearly no election on his part to hold his employers liable. As was said in Brabon v. Light & Power Co., 201 Mich. 697, 706:
“To proceed against the employer is to employ the procedure, the method, pointed out in the statute.”
The judgment is affirmed.
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 chancellor who heard this case in the court below filed a carefully prepared written opinion, from which we quote freely as follows:
“This is an action brought by the plaintiff to restrain defendant from charging and collecting rates as provided in an ordinance of this city adopted by the common council thereof on July 29, 1907, entitled as follows:
“ ‘An ordinance to regulate and control tbe exercise by tbe Grand Rapids-Muskegon Power Company In tbe streets and public places of tbe city of Grand Rapids of tbe franchise of transmitting and distributing electricity for light, beat and power as provided by section 7, title 4 of tbe charter of said city and to approve of tbe location and designation in such streets and public places of tbe lines of conduits, poles, wires and other conductors and appliances necessary therefor.’
“Defendant claims this ordinance authorizes such charges. The facts upon which each party hereto bases its claim are substantially as follows:
“The Grand Rapids-Muskegon Power Company, mentioned in said ordinance, acquired its corporate franchise under the' laws of the State of Maine on November 12, 1904, and was admitted to do business in this city under Act No. 206 of the Public Acts of this State for the year 1901 on December 19th of that year. Between its authorization to do business in this city, and the year 1907 it had expended large sums of money to enable it to produce and supply electricity for the purpose of light, heat and power and including construction of lines for the transmission of the same.
“On March 13, 1907, the Muskegon Power Company took up the matter of obtaining a franchise from plaintiff to do business in this city and sent a communication to that effect by its vice-president, W. A. Foote. * * * Such negotiations were had between said power company and said common council that the ordinance in question was introduced in said common council on July 15, 1907, and adopted as it now reads on July 29, 1907. It was duly accepted by said power company on August 5, 1907. Thereafter a petition was filed to submit said ordinance to referendum under section 2, title 4 of said city charter. In compliance therewith said council submitted said question at an election held on the 17th day of September, 1907. * * * The result was 5,157 votes in its favor and 3,470 against it. After the canvass of this vote said common council declared said ordinance adopted. * * *
“On August 17, 1907, said Grand Rapids-Muskegon Power Company caused to be published in the several papers in said city the following advertisement:
“ ‘Grand Rapids Press, Saturday, August 17, 1907.
“ ‘Electric Light and Power. The following reduced rates to take effect October 1, 1907. Reduced schedule of rates for light and power to take effect October 1, 1907.
“ ‘Lighting. * * * Power * * *
“‘A minimum charge of $1 per month will be made to each individual power customer. Ten per cent, will be added to all light and power bills not paid by the 15th of the month following.
“ ‘Grand Rapids-Muskegon Power Company.
“ ‘Grand Rapids-Edison Company.’
“The Muskegon and Edison companies signed this advertisement, and both accepted the ordinance, and subsequently all rights in and property of these utility companies were acquired by defendant. * * *
“In November, 1908, defendant put into effect certain rates to new customers, different from those stated above as shown in said advertisement, but which rates were less than those that defendant was authorized to charge in said ordinance of July 29th, as to new customers. These rates were continued in effect until sometime in 1910 when complaint was made by certain city officials claiming an unjust discrimination between the old and new consumers of electricity, and by reason of such complaint defendant discontinued such discriminatory rates and put all consumers on the rates as advertised in August, 1907, and as set out above. * * *
“From October 1, 1907, until December, 1920, the advertised rates continued to be the uniform fates charged by the defendant to its customers, with the exception of said discriminatory rates above mentioned, and whatever other charge was made in excess thereof, if any, between November, 1918, and January 20, 1919. It does not clearly appear by either the pleadings or proof in the case what such increased rates were, if any. It does appear, however, that on November 29, 1918, defendant notified the city commission that it desired to increase the rates charged as follows: 8 cts. per K. W. for the first 60 hours use of connected load, 6 cts, per K. W. for the next 60 hours use of connected load, and 4 cts. per K. W. for all current used thereafter. Plaintiff at that time denied defendant the right to charge any amount in excess of said published rates, and defendant then withdrew its claim for such increased rates and such notice from plaintiff was to the further effect that if defendant did not withdraw its increased rates that the city commission would reduce the rate of fare charged on the Grand Rapids street railway, and plaintiff claims that any excess collected by defendant at the rates last above stated were refunded to the persons, firms, or corporations paying such increased rates over said advertised rates of. 1907. Plaintiff' claims and defendant admits that on more than one occasion defendant has received notice from said city commission that it could not raise rates without the consent of such commission.
“About July 15, 1920, defendant presented a communication to said city commission asking authority to make a temporary increase in rates, a copy of which communication is attached to defendant’s answer marked Exhibit D, but is too long to include here. In compliance with such communication, this application was referred to Fred H. Locke, city manager, and George E. Ellis, commissioner, as a special committee who reported at the meeting of said commission held September 9, 1920, in effect that a temporary increase in defendant’s rates should be permitted and that an ordinance be drafted to that effect and in conformity with such report. ‘ On September 16, 1920; an ordinance was reported purporting to fix rates of increase as shown by such ordinance.” * * *
The defendant declined to accept this ordinance. We again quote:
“This ordinance was then amended by the said city commission so that section 2 reads as follows:
“ ‘This ordinance is an emergency measure subject to revocation at any time by the city commission and the consent, permission and authority hereby given and granted shall continue only so long as this ordinance shall remain unrevoked and in force.’
“Section 4 was stricken out and section 5 was made section 4 and amended to read as follows:
“ ‘The rights contained in this ordinance shall under no circumstances he construed as extending the life of the original franchise grant under which said company is now operating, but as expressly recognizing the said franchise and the several conditions therein contained other than as herein expressly modified.’
“With a few other slight and unimportant changes the ordinance was adopted by said city commission on November 4,1920, and was thereafter accepted by and acted upon by the said defendant. * * *
“The main question in this case is whether, under the above state of facts, defendant is bound until the expiration of its charter in 1927 by the rates advertised by the Grand Rapids-Muskegon Power Company on August 17, 1907, in the Grand Rapids Press, which were by the advertisement to take effect on October 1, 1907, and fully set out in paragraph 6 of plaintiff’s bill.
“Was the ordinance of July 29, 1907, a franchise, or was it an ordinance regulating the use of the franchise acquired by said Muskegon Power Company under and by virtue of Act No. 264 of the Public Acts of this State for the year 1905 ?
“This power company as already stated, received its corporate franchise under the laws of the State of Maine on November 12, 1904, authorizing it to manufacture, sell and distribute electrical current for lighting and power purposes. By complying with Act No. 206 of the Public Acts of 1901 of this State the Muskegon Power Company was authorized to conduct its business in the city and elsewhere of distributing its electrical current, and it was so lawfully engaged in this city on July 15,1907, and prior and subsequent thereto. The Muskegon Power Company in 1907 was not dependent upon authority from the common council of the city of Grand Rapids for the right to use its streets for the purpose of promoting and carrying on its public utility, that of furnishing electricity. This right said power company had acquired from the State in 1905. Plaintiff could not have prevented the use of such streets by said power company if it had desired so to do. This right on the part of the Muskegon Power Company by said Act No. 264 was restricted in, its use of said streets so as not to injuriously interfere with other public uses thereof, and the further restriction that the city had the power to make all reasonable rules for the location of all lines of poles and wires for the distribution of such electrical current. Further than this, plaintiff had no authority to interfere with the defendant in the exercise of its utility.
“Plaintiff, with the intention of exercising its right under said Act No. 264 adopted the ordinance of July 29, 1907. I do not think that it is at all important to determine whether this ordinance is a primary or secondary franchise, or whether it is a franchise at all in the strict construction of that term. The creation of the corporation, the Grand Rapids-Muskegoni Power Company, was a franchise. It was purely the creature of the statute, and such rights as were given it by the ordinance just mentioned, so far as placing poles, etc., are concerned as additional rights are often called ‘franchises,’ but perhaps should more properly be termed ‘powers.’
“The only significance, if any, in determining whether the ordinance of July 29, 1907, is a franchise or a regulatory ordinance is by reason of section 2 of title 4 of the city charter, in force at the time said ordinance was adopted, reading as follows:
“ ‘No franchise, whether an original grant, extension or amendment, shall become operative, where a petition is filed with the city clerk within 30 days after the first publication of the ordinance granting the same, signed by not less than 12 per cent, of the qualified voters of the city as shown by the vote at the last preceding general city election asking for submission of the question of granting such franchise to popular vote, until such franchise shall be so submitted at a regular election or special election called for that purpose and approved by a majority of the electors voting thereon.
“ ‘No grantee of a franchise or a privilege shall be entitled to assign or sublet the same or allow any other to use! the same without the consent of the city by ordinance duly passed which ordinance shall be subject to the referendum provided for in this paragraph.’
“Defendant contends that the said ordinance of July 29th is not a franchise entitling a referendum thereon. Plaintiff claims it is.
“Act No. 264 of the Public Acts of 1905 contains this language:
“ ‘The designation and location of all lines of poles and wires shall be subject to the regulation, direction and approval of the common council of cities,’ etc.
“After the adoption of said ordinance and within the time mentioned in said section 2, title 4 of said city charter, a petition was filed with the city clerk signed by more than 12 per cent, of the qualified voters' of said city as shown by the vote at the last preceding general election, asking for the submission •of the granting of such franchise at a popular vote. Assuming now that said ordinance was a franchise within the meaning of said section 2, of title 4, the said ordinance of July 29, 1907, was not operative until the votes of September 17, 1907, on said referendum was canvassed declaring said ordinance approved, nor until 42 days after its adoption and first publication thereof, nor unless accepted by both companies within said 42 days.
“The language of section 2 is that:
“ ‘No franchise, etc., shall become operative until approved by a majority of the electors voting tbereon.’
“The form of ballot that was used by the voters on this referendum was as follows:
“ ‘Shall an ordinance to regulate and control the exercise of the Grand Rapids-Muskegon Poweh Company in the streets and public places of. the city of Grand Rapids * * * passed by the common council on the 29th day of July, 1907, be approved?’
“The referendum related to the ordinance of July 29, 1907, only. It was so stated upon the face of the ballot.
“I have already stated the title of the ordinance. Plaintiff strenuously contends that this ordinance was a franchise. Defendant as strenuously denies that it is. Plaintiff contends that to make it operative a referendum was required upon the filing of the petition mentioned in said section 2, title 4 of said city charter. Defendant claims that it was not subject to a referendum vote; that such vote was a mere straw vote. Defendant claims the ordinance was a regulatory one merely and contains none of the elements of a franchise; that the right and privilege of the Muskegon'Power Company was granted by said Act No. 264 of the laws of 1905; that neither the right nor privilege to occupy the streets of said city was contained in said ordinance, but by which plaintiff had the right to the regulation given it by said act.
“The statute in question authorizes plaintiff to regulate and control, and section 7, title 4 of the charter of this city in force in 1907 provided in part as follows:
“ ‘The common council shall have the power to regulate and control the exercise by any corporation of any franchise exercised on, in and over the streets and public places of the city, whether such franchise has been granted by the city or by and under the laws of Michigan.’
“I have no doubt that the ordinance was passed for the purpose of regulating the exercise by the Muskegon Power Company of the rights granted to it by said Act No. 264. Said section 7 provides that the common council shall have the power to regulate and control the exercise by any corporation of any franchise exercised on, etc., but the Muskegon Power Company in July, 1907, had no franchise and no purported franchise from the plaintiff. I am inclined to adopt the contention of the defendant upon this proposition. Said Act No. 264 granted to plaintiff the power to regulate the exercise of the franchise that the Muskegon Power Company then had. I am led to the conclusion that the ordinance in question was not the granting of any such rights, powers, and privileges that constituted a franchise in the sense used in paragraph 2, title 4 of said charter that required a referendum to make it effective. Said Act No. 264 uses this language:
“‘That the designation and location of all lines of poles and wires shall be subject to' the regulation, direction and approval of the common council of cities.’
“The power to designate and locate was not left to the determination of the voters of the city of Grand Rapids. That authority was specifically delegated to the common council.
“Local Act No. 593, passed by the legislature of this State in 1905 and approved June 6th’ of that year, which act constituted the charter of the city of Grand Rapids, and section 7 of title 4 of said act, is as follows:
“ ‘The common council shall have the power to regulate and control the exercise by any corporation of any franchise,’ etc.
“This section of the charter was in force in July, 1907. By the terms of said Act No. 264 and the city charter the power to regulate and control the exercise by these utility companies of their franchise rightsi in the public streets of this city was vested in the common council and not in the voters. I am of the opinion that on the morning of September 9, 1907, the Muskegon Power Company had a right to locate its poles, etc., in accordance with such ordinance.
“By reason of the publication of August 17, 1907, are the rates then, published substituted for the rates provided in section 18 of said ordinance? This is an important question here and one that is affirmed by plaintiff and denied by defendant. If plaintiff’s contention is true, then the ordinance in question did not become effective as an ordinance until after the 17th day of September, 1907. If defendant’s contention is true it was a valid ordinance on July 29th and operative September 9, 1907. The publication of the newspaper articles was after the adoption of said ordinance and before it became effective upon plaintiff’s theory. Upon defendant’s theory the publication in question could not be received in evidence' to change or modify said ordinance because of its incompetency for that purpose.
“How does it affect the ordinance upon plaintiff’s theory? By the ordinance, maximum rates only were adopted. Any rate could be fixed by the Muskegon Power Company from nothing to the maximum rate. In the publication in question, the advertisement stated that beginning with October 1, 1907, the rates therein stated would be put in force. There was no time limit stated in that advertisement.
“Plaintiff contends that defendant is bound to use those rates and no other until the expiration of defendant’s charter unless permission to do so is granted it by said city commission. Defendant contends that it was, in no event, bound to continue them longer than a reasonable time for the purpose of determining whether such rates were reasonable and equitable to both producer and consumer. There is no proof that a single voter voted ‘Yes’ upon the referendum in question by reason of such advertisement.
“Plaintiff contends in effect that said referendum would have been defeated had it not been for such advertisement. Defendant contends that the affirmative vote was in the majority because the consumers in the city of Grand Rapids were desirous of having the Muskegon Power Company furnish its electrical current in addition to the electrical current that was then being furnished by the Edison Company. There is no proof that those who voted in favor of said referendum did so because of their desire for the services of the Muskegon Power Company. I do not think the subject of the motive of why the. votes were cast as they were on the 17th day of September, 1907, is one open to inquiry here. People v. Gardner, 143 Mich. 104; Angle v. Railway Co., 151 U. S. 1, (14 Sup. Ct. 240); Soon Hing v. Crowley, 113 U. S. 703 (5 Sup. Ct. 730). In my judgment the referendum was advisory only. The voters were not voting on the prices stated in said advertisement. They were voting to approve and for the purpose of having made effective, not the matter stated in said advertisement, but upon the ordinance as a whole, including the rates mentioned in section 13 thereof. This the voters knew, or they should have known, because the ballot plainly so stated and upon this proposition I differ with the attorney for plaintiff upon the construction of Township of Zilwaukee v. Railway Co., 213 Mich. 61, in that it has no application here. Upon this theory, the contract between the city and the Grand Rapids-Muskegon Power Company, as made and adopted by the common council on July 29, 1907, did not become effective until September 18, 1907, or thereabouts, and such publication was on August 17, 1907.
“The ordinance of July 29, 1907, under considera tion was plain and free from any ambiguity, and it was just as free from any ambiguity as the vote on September 17, 1907. From the nature of the contract itself, I refer now to the ordinance of July 29, 1907, I do not think that such published rates could modify the terms of said ordinance. If so, it was a modification of that ordinance which counsel for plaintiff claims to be a franchise, and the section of the city charter that is invoked by counsel for relator is as follows (I refer now to section 2, title 4 of the charter in force in this city in July, 1907) :
“ ‘No franchise, whether an original grant, extension or amendment shall become operative where a petition is filed with the city clerk within 30 days after the first publication of the ordinance granting the same,’ etc.
“If the rates published by the Muskegon Power Company on August 17, 1907, became effective as plaintiff claims, it was an amendment of and substitution for section 13 of said ordinance. Such published rates were carried by the Muskegon Power Company and by defendant for a reasonable length of time and defendant was not bound to continue them longer.
“Have the acts of the Grand Rapids-Muskegon Power Company and the defendant here, or the acts of either of such corporations, estopped defendant from relying upon and enforcing paragraph 13 of said ordinance? Plaintiff grounds its claims of estoppel upon the following, conduct of said corporations:
“First: By reason of such publication itself.
“Second: Because the Muskegon Power Company and the defendant charged and collected only such rates for some time after October 1, 1907.
“Third: Because the Grand Rapids-Muskegon Power Company made an offer which the people by their vote accepted and which vote bound said Muskegon Power Company and defendant to the expiration of the charter of said defendant.
“Fourth: Because said Muskegon Power Company sought to increase the rates as advertised to new customers which were discontinued upon complaint of the common council of said city and ceased to charge such rates, returning to and charging such new customers the rates it advertised, and refunded all such collections made in excess of such amounts.
“Fifth: That on November 29, 1918, the defendant here sought to increase its rates over said published rates and which right was denied by plaintiff, and defendant here then withdrew its claim for increased rates and those which had been collected in excess of such published rates were refunded.
"Sixth: For the further reason that on July 15, 1920, defendant petitioned the city commission of said city to allow a temporary increase in its light and power rates. This increase was allowed and an ordinance for such allowance was introduced for said city commission on September 10, 1920, and the same was duly passed on November 4, 1920.
“Seventh: Plaintiff also, as one of its grounds of estoppel, charges that defendant having accepted and acted under the ordinance of November 4, 1920, that it has waived the right and is estopped and barred during the term of said ordinance from charging any rate in excess of those thus permitted.
“Upon all these reasons so assigned by plaintiff, defendant takes issue. I will consider these reasons in the order just stated. I have already substantially disposed of the first one.
“In addition to what I have already said, it will be further noticed that the publication of the rates on August 17, 1907, did not state how long the rates were to continue. They were to be put in effect on October 1st following. No formal assent thereto was given by the common council of said city. The rates as therein stated were not voted upon, even if such vote was of any significance as affecting the ordinance in question. I do not think it had such effect. The common council of said city must have understood on April 28,_ 1910, that the Muskegon Power Company had not intended and did not then intend that such published rates were to be permanent. Prior to that date as to new subscribers the rates had been increased. Upon complaint of said common council such rates were reduced to make them uniform and to prevent discrimination therein.
“On said April 28th a communication was sent to said common council stating in part as follows:
“‘However, to meet your views and to correct tbe matter of discrimination, we will on May 1st next, establish, tbe rate of October 1, 1907, to all customers, and will give it a fair trial, frankly stating, however, that if experience still further demon strates that this rate is too low, a new schedule of classified rates will be prepared based on what is considered to be wise and necessary at the time; but no change in rates will be put into effect without due and proper notice to all interested parties.’
“More significant still is that defendant had never considered such published rates as permanent.
“We have the amended ordinance increasing rates which was asked for by defendant on or about the 15th day of July, 1920, and'an ordinance in compliance therewith was passed by the city commission of said city on September 27, 1920, section 2 of which ordinance was as follows:
“ ‘This ordinance is an emergency measure, subject to revocation at any* time by the city commission, and the consent, permission and authority hereby given and granted shall continue only so long as this ordinance shall remain unrevoked and in force, and upon revocation the right to charge any rate in excess of the rates fixed under the existing franchise as construed and amplified by publication at the time of its adoption by the people, shall cease.’
“The publication referred to therein was the one of August 17, 1907.
“Section 4 of this ordinance was as follows:
“ ‘It is understood and the company in accepting the terms of this ordinance, expressly agrees that it shall be and is bound by the rates as published when its franchise was submitted on referendum to the people, insofar as the same are other or different from the rates fixed in said franchise upon and after the revocation of this ordinance as herein provided.’
“This ordinance so far as sections 2 and 4 thereof were concerned was rejected by defendant, and which opposition thereto was made manifest to said city commission on October 18, 1920, in a communication by defendant to said city commission, reading in part as follows:
“ ‘While we are desirous of meeting the views of your honorable body, we cannot accept in its present form the ordinance authorizing us to temporarily increase our commercial lighting and power rates. The rates as incorporated in the ordinance are the compromised rates as the company understood them, but the stipulation in the ordinance that if it is repealed the com pany will be legally bsund by rates other than those provided for in the regulating ordinance, makes It impossible for us to accept it.
“ ‘The rates established in. 1907 were based entirely on the 1907 costs and it would not be fair and equitable to return to these rates until the 1907 costs again obtain. We would, however, be willing to accept the ordinance with a clause inserted therein that if the temporary rates are repealed the company would then agree to charge for the remainder of the 20-year period provided for in the regulating ordinance of 1907, not exceeding the following rates for residential lighting.’
“Said city commission, acting upon this communication, amended said ordinance, striking therefrom the features objectionable to defendant and entered into a new contract as to rates mentioned therein with defendant, by passing such amended ordinance on November 4, 1920, substituting for said objectionable section 2 the following as section 2 of the ordinance as passed on said last mentioned date:
“ ‘This ordinance is an emergency measure, subject to revocation at any time by the city commission, and the consent, permission and authority hereby given and granted shall continue only so long as this ordinance shall remain unrevoked and in force.’
“Said objectionable section 4 of said ordinance was entirely eliminated. It, therefore, clearly appears that defendant refused to be bound to return to the said advertised rates when this last contract and ordinance was repealed and revoked. Understanding this, and in compliance with defendant’s expressed désires, plaintiff made the contract of said November 4, 1920. Understanding that when it should repeal said ordinance that defendant was not bound by the advertised rates, but did understand that defendant would not accept that or any other ordinance unless it was permitted to return, if it so desired, to the charges stated in section 13 of said regulating ordinance of 1907. I do not think plaintiff’s contention can be sustained because the Muskegon Power Company and its successor, this defendant, charged and collected rates for some time in accordance with those advertised to be put into effect in October, 1907, by said Muskegon Power Company.
“I do not think the third reason above stated is tenable. I do not understand that the people by their vote accepted the rates so advertised. Some of the voters probably knew, it is not at all likely that they all knew, that the Muskegon Power Company had offered to put in force the rates it advertised it would put into effect October 1, 1907.
“Plaintiff’s next reason, is based upon the fact that at one time the Muskegon Power Company sought to increase its rates as advertised to new customers. These rates were discontinued. They were discontinued because discriminatory. The mere fact that said Muskegon Power Company charged all its consumers the rates as advertised and refunded whatever it had collected in excess of such amounts to said new subscribers, I do not think did or could have the effect of estopping this defendant from increasing its rates at any time uniformly up to the maximum stated in said regulating ordinance.
“The fifth reason assigned by plaintiff as grounds of estoppel I do not think is effective for that purpose. Defendant desired on November 29, 1918, to increase its rates. Plaintiff objected thereto and defendant thereupon withdrew its claim for such increased rates at that time.
“The sixth and seventh reasons assigned for such estoppel is, in effect, that on July 15, 1920, defendant petitioned said city commission for a temporary increase in its light and power rates. Such rates were allowed by an ordinance adopted November 4, 1920.
“Plaintiff states its seventh reason for estoppel in the following language:
“ ‘Defendant having accepted and acted under the ordinance passed November 4, 1920, and derived the benefit therefrom has waived the right and is estopped and barred during the term of said ordinance from charging any rates in excess of those thus permitted.’
“I am not able to follow plaintiff’s counsel in this reasoning. It does appear that on various occasions, the Muskegón Power Company and defendant applied to the common council of the city of Grand Rapids and to its city commission for permission to increase rates in respect to some of its charges, and particularly in July, 1920, it asked permission of the said city commission to charge a rate higher than said advertised rates and higher than the maximum rate authorized by said ordinance. In asking that permission I do not believe defendant or said Muskegon Power Company waived any of its actual rights under said ordinance.- The fact that defendant in July, 1920, asked for an increase in some of its rates, and which increase was thought reasonable by said city commission, and so believing by ordinance adopted on November 4, 1920, permitted such increase. This increase was continued by defendant until the revocation or repeal of that ordinance on the 10th day of March, 1921.
“The ordinance of November 4th did not go into effect until December 4, 1920. The ordinance of March 10th did not take effect until April 10, 1921. It is now plaintiff’s claim and by reason of the passage of said ordinance of November 4, 1920, and the fact that the increase permitted thereby was charged by defendant, and notwithstanding its repeal on March 10, 1921, that now defendant is estopped and barred from charging any rates in excess of those thus permitted. Again I say I must admit I do not understand plaintiff’s reason for such claim. If plaintiff had the right to permit the increase by the ordinance of November 4, 1920, and then revokes the same, how can it claim any binding effect upon defendant by reason thereof? I think this claim of waiver and estoppel on the part of plaintiff for this reason is of no force.
“The rates permitted to be- charged by this ordinance of November 4th were in excess of said advertised rates and were in excess of the maximum rates fixed by said ordinance of July 29, 1907. If upon this proposition plaintiff is right, I do not quite understand why plaintiff provided in section 2 in its ordinance of November 4, 1920, in the first instance the following clause:
“ ‘This ordinance shall continue only so long as it shall remain. unrevoked and in force and upon revocation the right tQ' charge any rate in excess of the rates fixed under the existing; franchise as construed and amplified by publication at the time of its adoption by the people, shall cease.’
“Up to this time plaintiff must have believed that defendant had the right to return to the rates as fixed in section 13 of said ordinance. In passing the ordinance that was finally adopted on November 4, 1920, it attempted in the first instance to effectually cut off this right. Defendant in my judgment has not waived any of its rights or is now estopped from returning to and charging the rates as fixed in said section 13 of the ordinance of 1907.
“The specific relief prayed for in plaintiff’s bill is as follows, briefly stated:
“ ‘That defendant be restrained and enjoined from demanding, taking or collecting from its consumers in the city of Grand Rapids any sum in excess of the published rates of August 17, 1907, for power; and restrained and enjoined from cutting off its electrical current from any of its consumers or interfering with their usei thereof because of refusal on their part, or any <of them, to pay an amount over the rates as published and permitted as stated in said bill of complaint; that defendant 'be required to account for and pay over to any person, firm •or corporation any and all amounts it has collected or shall .hereafter collect in excess of the rates published for current tused.’
“It is my judgment that plaintiff is not entitled to any of the relief thus prayed for. I am still further of the opinion that the method adopted by the defendant in putting its rates into effect under the ordinance of November 4, 1920, and its readjusting its rates upon the repeal of said ordinance by said plaintiff are just and equitable and that plaintiff is entitled to no relief by reason thereof.
“I have read the cases cited by counsel for plaintiff upon every proposition contended for, but by reason of the length of this opinion I will not attempt to state wherein they differ in principle from the case under consideration in my judgment, nor why they are not controlling upon any of the main questions involved in this controversy.
“For these reasons plaintiff’s bill of complaint must be dismissed with costs. Counsel for defendant may prepare a decree in conformity with this opinion.”
The case is brought here by appeal.
We cannot state the contention of the city better than to quote from the brief filed in its behalf:
“The principal issue in this case is whether after a franchise ordinance has been passed by the city council, and to secure a favorable vote on the referendum thereon, the company has published certain rates more favorable to the consumers than the maximum of those granted by the franchise, they are bound by such published rates. * * *
“It is our contention that the obligations assumed by the Grand Rapids-Muskegon Power Company in the advertisement of these rates and the inducement thus held out to the citizens of Grand Rapids to approve the franchise by the ballot, was more than a moral obligation. See City of Saginaw v. Consumers Power Co., 213 Mich. 460. It was an offer made by the company and in such terms as they deemed proper. Had they desired to limit it to a certain period; had they desired to make it subject to termination at any time; had they in fact desired to in any way qualify it, it was within their power to do so, and they alone could do it, as they alone made the offer. Not having so limited it, it is our contention that it was for the life of the franchise, in connection with which the advertisement was inserted. * * *
“It is not the contention of the city as before stated, and it does not seek to modify or change the franchise contract by prior or contemporaneous evidence, rather the position of the city is that after having been granted this franchise by the then common council and having knowledge that the same was about to be submitted to a referendum vote, the Grand RapidsMuskegon Power Company sought by every means in its power to secure a favorable vote, and as one of the most potent arguments to that end, advertised and promised the rates in question, thereby holding out to the people that a vote for the franchise would result in a vote for the rates as advertised. * * *
“The franchise, the advertisements, the referendum followed by the inauguration of the advertised rates for many years, are admitted. As between individuals the question would be a simple one. The company made an offer which the people by their vote accepted. For how long a period is the company bound? The answer claims for a reasonable time only. We claim for the life of the contract, as the company had within its power to have limited the period, which in its wisdom it did not do.”
We do not deem it necessary to add very much to what was so ably said by the chancellor in the opinion, from which we have quoted. We think it a complete answer to the contention of the city that there is no reference whatever in the ballots which were voted to the advertisements which appeared in the papers. The vote was-upon the proposition of whether the ordinance of July 29, 1907, should be approved. As already shown it was approved.
We think the decree of the court below should be affirmed, with costs to the appellee.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision.
right to raise rates of public service corporation fixed by franchise, see note in L. R. A. 1915C, 287.
On power of municipality apart from contract to regulate the rates to he charged by public service corporations, see notes in 33 L. R. A. (N. S.) 759; 43 L. R. A. (N. S.) 994. | [
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] |
Per Curiam.
Defendant was convicted in justice’s court of a violation of certain provisions of Act No. 295, Pub. Acts 1909, as amended by Act No. 78, Pub. Acts 1911 (2 Comp. Laws 1915, § 7623 et seq.). Upon a trial in the circuit court the jury rendered a verdict of not guilty under the direction of the trial judge. The action of the trial judge was in the main prompted by his view that the act was invalid. The people seek to review this action under the provisions of Act No. 159, Pub. Acts 1917.
While some equivocal language will be found in subdivision (b) of section 1 of this act, the unequivocal language found in section 3 precludes a review in this court where there has been a verdict by the jury of not guilty. The proviso of this section is as follows:
“Provided, That no writ of error shall be taken by or allowed the people of the State of Michigan in any case where there has been a verdict in favor of the defendant.”
The writ of error must be dismissed. | [
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Bird, J.
This suit was begun by plaintiff to recover on a joint life insurance policy issued by defendant on the lives of Henry Hoyle, the plaintiff, and his wife, Callie. The policy was for $1,000 and was issued on May 8,1918. The annual premium was paid when the policy was issued. The next annual premium, which was due May 3, 1919, was not paid when due. On September 5 or 6, 1919, plaintiff paid the 1919 premium and the interest thereon during the period of default. This payment was made to W. E. Sharp, an agent of the company at Jackson, where plaintiff resided. It is shown that Sharp took plaintiff’s receipt for 1918 and receipted thereon for the 1919 premium. After this was done Sharp inquired of plaintiff if his wife was sick and plaintiff replied that she was not. He asked the second time as to her health and plaintiff suggested that Sharp send a physician to his home to ascertain the state of her health, but Sharp said: “No, it would not be necessary.” Two months or more after this payment Callie Hoyle died. Plaintiff made demand for payment of the policy. The demand was refused and plaintiff advised that the policy lapsed on account of the nonpayment of the 1919 premium and had not been reinstated for want of a health certificate. Sharp denied that he informed plaintiff when he paid the premium that it would be unnecessary to have a health certificate. He testified he advised him that it would be necessary unless the company would accept the premium without it. The trial court instructed the jury that if plaintiff’s version was the true one he could recover, but that if Sharp’s version was true, no recovery could be had. The matter went to the jury on the one question and they found a verdict for plaintiff.
At the close of the testimony both counsel requested a directed verdict and defendant’s counsel complains because his request was not granted. It appeared from'the testimony that after plaintiff paid the premium Sharp- sent it to the company. The company’s claim was that it advised Sharp it would retain his check for the premium until he could get a health certificate upon which to base a reinstatement of the policy. This was not done by Sharp and plaintiff testified that nothing was said to him concerning it until after his wife’s death, when the premium was returned by the company.
We are impressed that the view of the trial court was the proper one. The testimony of plaintiff and Sharp was in conflict. If Sharp accepted the premium conditionally until a health certificate could be obtained, if the company demanded it, and the company did demand it, and the wife died before the policy was reinstated, no recovery could be had under the terms of the policy. On the other hand, if Sharp accepted the premium and was advised as to the health of the insured, and after being so advised, informed plaintiff that a health certificate would be unnecessary, then plaintiff would be entitled to recover. It is true the testimony showed that the company wrote Sharp to obtain a health certificate, but he did not do it, and his neglect in this respect was the neglect of the company. If Sharp took plaintiff’s money and led him to believe that he was secure and his policy reinstated and he was not advised otherwise by the company, until after his wife died, the company would be estopped in denying its liability. The rule applicable here is stated, as follows:
“Any acts, declarations or course of dealing by the insurers, with knowledge of the facts constituting a breach of a condition in the policy, recognizing and treating the policy as still in force, and leading the assured to regard himself as still protected thereby, will amount to a waiver of the forfeiture by reason of such breach, or to a dispensation of the performance of the conditions of the policy and will estop the company from setting up the same as a defense when sued for a subsequent loss.” 14 R. C. L. p. 1182.
For application of this rule, see Pollock v. Insurance Co., 127 Mich. 460; Foreman v. Insurance Co., 104 Va. 694 (52 S. E. 337, 3 L. R. A. [N. S.] 444); Insurance Co. v. Wilkinson, 13 Wall. (U. S.) 222.
If plaintiff’s testimony is to be accepted Sharp led him to believe that in making payment of the 1919 premium he reinstated his policy, and he continued in this belief until after the loss, had occurred. The fact that the company did not accept Sharp’s conclusion is of no force because that information was never brought home to plaintiff until after the loss had occurred. Whether the failure to bring it to the attention of plaintiff was due to Sharp or to the company is of no importance, as Sharp was. the agent of the company for that purpose. Neither is it important whether Sharp was a general or special agent, as it is conceded that the company was advised as to what he had done. Sharp' was the agent of the company to carry out its orders and get a health certificate. His neglect to do this was the neglect of the company. After receiving the premiums and being advised as to what Sharp had' done, it would be manifestly unjust to permit the company to plead its own neglect, or the neglect of its agent, in defense of the claim. Had plaintiff been promptly advised of the attitude of the company he would probably have furnished the health certificate or obtained insurance elsewhere.
There are other minor assignments made, but in view of our conclusion we think they are of no importance.
The judgment of the trial court must be affirmed.,
Steere, C. J., and Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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Bird, J.
Defendant brought suit in the Wayne circuit court to recover certain moneys which it claimed were owing it from plaintiff. The suit was begun by declaration and the return of the officer thereon shows that it was seryed on plaintiff by delivering to Leonard B. Orloff, the president of the plaintiff company, a copy of the declaration. Plaintiff paid no attention to the service, and in due time defendant entered its default and took a judgment for $8,045.50. An execution was issued thereon and placed in the hands of the sheriff. When notified by the sheriff that he had such execution plaintiff filed this bill, briefly stating therein the facts and praying for an order setting aside the judgment and default and permitting it to enter its appearance and defend on the merits, also praying for an injunction to stay the execution. Upon this showing a temporary injunction was issued to restrain the collection of the judgment. The defendant answered the bill and at the same time entered a motion to dissolve the injunction and dismiss the bill. The motion was heard and granted. We are now asked by plaintiff to reverse the conclusion of the chancellor.
We are impressed, as doubtless the chancellor was, that the showing in the bill was exceedingly meager upon which to base the relief asked. The following paragraph constitutes substantially all the material showing in the bill:
“Your orator respectfully shows unto the court that it has no knowledge of the afore-mentioned law case and of the service of the said declaration, and that unless your orator is given the opportunity to enter its appearance in the afore-mentioned case and defend upon the merits, and if said execution is not enjoined by order or injunction of this court, the aforesaid sheriff will levy the said writ of execution and cause your orator irremedial and irreparable damage.”
The bill does not deny that service of process was made as the return shows, neither does it contain any showing of merits. It does not disclose that it has a meritorious defense to the action, it does not explain why the service of process was disregarded and does not deny the indebtedness. As near as can be gathered from plaintiff’s brief, it is conceded that it owes the defendant something, but not as much as was claimed. We are of the opinion that under these circumstances the conclusion reached by the chancellor was the proper one.
Some complaint is made by appellant because the chancellor refused' to permit the bill to be amended so as to make a further showing upon the question of the merits of its defense. Counsel discusses this question in his brief and complains because he was denied this right, but we find nothing in the record to base it on. We are unable to find in the record that any motion was made to amend the bill, or any refusal to permit it upon the part of the chancellor. In view of this we cannot consider the question.
The decree is affirmed, with costs to the defendant.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Steere, C. J.
Defendant was convicted in the circuit court of Monroe county of the crime of manslaughter, committed on April 29, 1919, by running over with an automobile, and killing, a girl 17 years of age named Gertrude Cousino as he was driving north through the village of Erie on his way from Toledo to Detroit along the thoroughfare known as the Dixie highway. Erie is a small unincorporated village about 10 miles south of the city of Monroe, having a few places of business and a number of residences centered around a four corners where an east and west road crosses the Dixie highway. On the cross-road just east of the Dixie highway is located a Catholic school. Miss Cousino was killed not long before 9 o’clock in the morning close to the cross-road at the time when pupils were going to the school. Quite a number of them; saw the accident and also several older persons who were at or near the crossing. Testimony of the prosecution showed that an automobile (used as a "bread wagon”) which carried some pupils to school from north of Erie had just stopped at the northwest corner to discharge them when Miss Cousino was seen to come out from the direction of her home onto the east side of the Dixie highway several hundred feet south of the corner and turn north, walking along the highway on its right, or east, side towards the corners, wearing a red hat as certain witnesses seem to have particularly noticed.- An automobile was also noticed at quite a distance beyond her, coming from the south at a high rate of speed. The driver of the auto which brought the pupils from the north and stood at the northwest corner of the crossing testified that the rapidly approaching automobile was at least a quarter of a mile further south when Miss Cousino came out upon the highway, and both were thereafter in plain sight with nothing between them to obstruct the driver’s view until it struck her just before she reached the crossing. The on-coming car did not sound its horn nor slacken speed, estimated by various witnesses at from 20 to 85 miles an hour, and as it struck the girl swept or carried her along for nearly 30 feet before she fell to the ground and it ran over her, killing her almost instantly. The automobile was'a Studebaker with two men in it. Defendant was driving and did not stop when he struck her, but stepped on his accelerator and hastened away. A young man just then in front of the post office north of the four corners, who heard the accident and saw part of it, caught the number of the car as it went by increasing its speed. The car cleared the village at an estimated speed of 40 miles an hour and further north the men were seen throwing bottles from their automobile, some of which containing whisky were picked up by children who saw them thrown. After driving about four miles north of Erie along the Dixie highway defendant drove down a cross-road for about a half mile and stopped within sight of a farm house where he and his companion tore the license numbers from the automobile and threw them in a ditch. The farmer and his son near whose place they stopped saw them do this and then leave the car, walking back east towards the Dixie highway. Notice of the accident and the number of the car were telephoned the sheriff at Monroe and a deputy from there on his way toward Erie met the two men walking-north on the Dixie highway, stopped and talked with them, told of his mission and asked if they had seen anything of such an automobile as he described. They denied having seen any car and the sheriff went on. Later he learned where the automobile was left and other particulars which led him to return north after these men, whom he overtook and apprehended before they had reached Monroe. When examined where they left it their automobile was without license plates. Mutilated plates found in a ditch near by were issued by the State of Ohio. A broken whisky bottle was in the car and on shelves concealed under the running board were found 72 bottles of whisky.
Defendant admitted he was driving the car which struck the girl to Detroit from Toledo, where he had been emiployed in the liquor business, but denied ever having any whisky in that car. He testified that he did not see the girl until just as the machine hit her and did not stop for fear he would be mobbed; that the accident occurred as he was passing a horse and buggy standing in front of a store, or shop, and a moving hay wagon, when the girl suddenly came out in front of his machine as the hay wagon passed. The other occupant of this automobile supported defendant’s account of how the accident occurred. The testimony of witnesses for the prosecution was positive that no such vehicles were in the street at the place of the accident or to the south of it, but that the way was clear and the girl in plain sight of the approaching car from the time she came out upon the road until it overtook and struck her. This issue of fact was submitted to the jury under proper instructions.
Defendant’s several assignments of error are all directed to the court’s admitting, and permitting the jury to consider, evidence that defendant was carrying intoxicating liquor in his car at the time of the accident in violation of State and Federal laws. Upon that proposition appeal is made to the general rule that, in a prosecution for a particular offense, evidence of the accused committing another and distinct offense is inadmissible, and it is urged that evidence of defendant’s having whisky in the car which killed Miss Cousino has no tendency to prove that he could and should have seen her in time to avoid the accident, which is the crucial test of his guilt, that evidence of his being a law breaker in transporting or having in his possession intoxicating liquor was wholly irrelevant and prejudicially tended to inflame the minds of the jury against him.
It was the claim of the prosecution that the accidental death of Miss Cousino was caused by defendant while he was intentionally and recklessly engaged in unlawful acts in violation of statutory provisions, and such criminal intent attached to the accidental killing under the law of homicide, making the offense either murder or manslaughter. As covering the unlawful acts which there was testimony tending to show defendant was intentionally committing and for the perpetration of which he was using the very instrumentality which, killed Miss. Cousino the following statutory provisions are referred- to. As directly relating to the instrumentality used, section 4817, 1 Comp. Laws 1915, prohibits operating’ a motor vehicle upon a public highway in this State at a greater speed than is reasonable, or so as to endanger the life or limbs of any person, not in any event to exceed 25 miles an hour, and requiring that on approaching an intersecting highway the operator shall have the vehicle under control, operated at such speed as is reasonable and proper with regard to the traffic then on the highway and safety of the public. Section 4818 provides:
“Upon approaching a person walking in the roadway * * * a person operating a motor vehicle shall slow down to a speed not exceeding ten miles an hour and give reasonable warning of its approach and use every precaution to insure the safety of such person.”
By section 4824 violation of these provisions is punishable as a misdemeanor.
Act No. 58, Pub. Acts 1919, makes it a felony to have in possession or transport intoxicating liquors in this State, with certain exceptions not applicable to the evidence offered here. Federal statutes providing punishment for offenses against interstate commerce make transportation of liquor between States in the manner indicated here a misdemeanor with heavy penalties provided.
Defendant’s objections are particularly directed against the court permitting reference to and admitting evidence tending to show violation of State and Federal laws relative to transporting liquor. . The agency by which defendant was transporting liquor in violation of law was the same agency with which he killed the girl and a connected element in the chain of cause and effect. That criminal act of so transporting liquor cannot be held, as a matter of law, entirely disconnected with his negligent act in' so driving his car which carried it as to cause the fatal accident.
The trial court explained to the jury the different degrees of unlawful killing covered by the information and distinctly charged that defendant could only be convicted, if convicted at all, of involuntary manslaughter, which is quite generally defined by the authorities as the unintentional killing of a person in the commission of an unlawful act, or—
“the killing, of a human being, without any intention to do so, but in the commission in an unlawful manner, of an unlawful act, or of a lawful.act, which probably would produce such consequences.” Wharton on Homicide (3d Ed.), p. 8.
The fact that the act which caused death was not' a misdemeanor at common law does not relieve the killing from constituting manslaughter if the act is made a misdemeanor by statute. People v. Abbott, 116 Mich. 263.
Under the facts in this case as submitted to the jury we can safely rest this inquiry on the following designation of manslaughter by Justice Stone in People v. Barnes, 182 Mich. 179:
“There seems to be no conflict in the decisions where the respondent is violating some statute, and where his manner is negligent and careless; the courts in such cases uniformly hold that he is guilty of manslaughter, if the death of some other person is the result.”
The trial court limited- consideration of the proof that defendant was engaged in unlawful transportation of liquor to the question of whether or not his criminal conduct in that particular so affected his. mind as to stimulate or induce wanton negligence in recklessly driving his car as claimed, thereby showing its causal connection with the killing.
On that subject the court charged the jury as follows:
“I have already charged you that defendant, if .found guilty, must be found guilty of gross and culpable negligence in striking and killing Miss Cousino and that such gross and culpable negligence in driving and managing his automobile was the proximate cause of Miss Cousino’s death. * * *
“Gentlemen of the jury, there has been some testimony introduced here in reference to the defendant’s automobile containing whisky. That testimony was admitted not for the purpose of proving the guilt of the defendant on the charge here made against him, but was introduced as bearing upon the question of negligence. If the defendant knowingly had in his automobile a quantity of liquor which he was transporting from Toledo, Ohio, to Detroit, Michigan, he would be guilty of a felony under the laws of Michigan and he would also be guilty of an offense under the laws of the United States. And while the fact, if you find it to be a fact, that he had whisky in his automobile is no evidence of his guilt and is not to be considered in this light, yet you may consider it as bearing upon his negligence. It is the theory of the prosecution that the defendant was violating the statute referred to and transporting liquor illegally and was hurrying through the county of Monroe with his illegal load of liquor. This theory of the prosecution must also be proven to the jury beyond a reasonable doubt before the jury can consider the carrying of the liquor as having had anything to do with the accident. In any event and even though the defendant was knowingly carrying the liquor, he must be found to have driven his machine at the place of the accident with gross and culpable neglect and that the accident occurred from such gross and culpable neglect.”
Under the circumstances of this case proof that defendant was engaged in perpetrating a criminal act with the very agency by which he caused the accidental death, was competent for the purpose to which the court carefully limited it in a very plain and fair charge fully protecting the rights of the accused.
The conviction and judgment of sentence will stand affirmed.
Moore, Wiest, Fellows, Stone, Clark, Bird, i and Sharpe, JJ., concurred. | [
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Wiest, J.
Claiming to be the owner in fee simple of certain real estate upon which an attachment has been levied in the suit of Amariah F. Freeman v. Homer C. and May Miller pending in the circuit court for the county of Washtenaw, Elizabeth Chase petitioned that court for leave to intervene and file a motion to vacate the attachment and dismiss the action in so far as it subjects her property to the attachment. The circuit judge refused to grant her leave to intervene for such purpose and she now asks this court for writ of mandamus to compel him to let her intervene and make motion to quash the writ of attachment and free her property. Plaintiff claims the right to intervene under the statute, 3 Comp. Laws 1915, § 12362, which provides:
“In an action either at law, or in equity, anyone claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”
Plaintiff insists that this statute gives her a right to intervene for the purpose of asserting her title to the attached real estate upon motion to vacate the attachment. Under the common law no right to intervene existed. And none existed prior to the adoption of the statute in 1915. Peterson v. Swenningston, 178 Mich. 294. Under the statute any person claiming an interest in the litigation may be permitted to intervene for the purpose of asserting rights; plaintiff, however, does not assert any interest in the litigation and only seeks to free her property from a claimed wrongful attachment by invoking an issue to that end and not to enter the suit to be. heard upon the question of the right of plaintiff therein to recover or the measure of his recovery.
Plaintiff cannot be permitted to intervene for the sole purpose of moving for a dissolution of the attachment. Sidebottom v. Calhoun Circuit Judge, 202 Mich. 116. In that case it was held that one may not intervene for the purpose of mpving a dissolution of the attachment proceedings, because that would not be “in subordination to and in recognition of the propriety of the main proceeding.”
The writ prayed for is denied with costs to Amariah F. Freeman, plaintiff in the principal case.
Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Sharpe, J.
The plaintiff and defendant were mar ried by the judge of probate of Ingham county on November 13, 1919, the plaintiff then being 16 years of age and the defendant 20. The marriage was consummated under the provisions of Act No. 180, Public Acts of 1897 (3 Comp. Laws 1915, §§ 11387-11391). After the marriage the plaintiff returned to the home of her parents, with whom she has since resided. A child was born to her on February 17, 1920, and is now living. On defendant’s refusal to live with plaintiff or contribute to the support of herself or said child, plaintiff filed the bill of complaint herein for separate maintenance.
The defendant in his answer denies that the marriage performed was a lawful one, denies that he is the father of the plaintiff’s child, admits his refusal to support her or the child, avers that he is without money or property, and by way of cross-bill alleges that the statutory requirements preceding such marriage were not complied with and the parties not legally married; that he was induced to participate in such ceremony—
“through wicked deception, false and untrue assertions and under a threat that he could and would, if he did not marry the girl, be imprisoned in the State prison at Jackson for twenty years.”
In the prayer thereof he asks that the so-called marriage be declared void and he released therefrom.
The proofs were taken in open court. A decree was entered dismissing the cross-bill and ordering defendant to pay plaintiff, for the separate maintenance of herself and their child, $10 per week, beginning on September 13, 1920, and continuing until said child reaches the age of 16 years, and an additional sum of $50 as attorney’s fees, payable in weekly installments of $10 each, besides the taxable court costs. From this decree the defendant has appealed.
Many reasons are assigned for the reversal of the decree. The questions raised are all fully considered and discussed in the opinion of the circuit judge, which is made a part of the record. With the conclusions reached by him we agree. His finding that the defendant is the father of plaintiff’s child is, we think, fully supported by the proof, as is also his conclusion that the defendant did not enter into the marriage contract through force or fear, but to relieve himself from the unfortunate condition in which he found himself placed, owing to the plaintiff at the time of her conception being under the age of 16 years. The legal questions presented by defendant will be considered.
It appears that no written consent of the parent or guardian was filed with the probate judge before the issue of the license by him. The plaintiff was then 16 years of age. The statute (§ 11387) authorizes such marriages when the parties are under marriageable age if the application for the license be accompanied—
“by the written request of the parents of.both parties, if living, and their guardian or guardians if either or both of the parents are dead * * * when, according to his judgment, such marriage would be a benefit to public morals.”
Section 11362, 3 Comp. Laws 1915, provides:
“Every male who shall have attained the full age of eighteen years, and every female who shall have attained the full age of sixteen years, shall be capable in law of contracting marriage, if otherwise competent.”
The marriageable age of a female is fixed in this section at 16 years. No request of the parent need accompany the application if she has reached that age. In People v. Schoonmaker, 119 Mich. 242, where the validity of a marriage performed under section 11387 was involved, the court said:
“The witness Maude Breen was, at the time of the ceremony, under the age of 16 years, and incapable of making a full contract of marriage, under sections 6209 and 6210, 2 How. Stat. (3 Comp. Laws 1915, §§ 11362, 11363).”
We think the marriage performed fully complied with the requirements of the statute.
Plaintiff admitted on cross-examination that she had, before meeting with defendant, been intimate with a number of other young men. She was examined at length as to what occurred before they reached the car in which the act took place. She was then asked:
“Q. Now, can’t you tell what was said?
“The Court: I don’t think it is material to go into the solicitations leading up' to it.”
When asked if there was anything on the bottom of the car, the court, on objection of plaintiff’s counsel, said: “I don’t care about the details.” This limitation of the cross-examination was, we think, well within the discretion of the trial court.
Plaintiff’s father, under cross-examination, admitted that, when at the police station, he wanted the defendant to marry her. Pie was asked:
“Q. You had made up your mind that if he did not do the right thing he would be prosecuted?”
An objection to this question was sustained. We fail to see how the state of mind of this witness, not communicated to the defendant, can be said to have in any way influenced his action.
We have read the record and briefs with much care. The plaintiff is not free from blame. But the defendant was many years older, and we cannot but find that his own conduct is responsible for the unfortunate predicament in which he is now placed.
The decree in its entirety is before us for review on this appeal. We are impressed that the weekly allowance fixed therein is likely to be beyond the ability of the defendant to pay. He has no property, no profession or trade, and nothing from which to make payment except the proceeds of his daily earnings. We apprehend that he will have difficulty in earning $10 per week over and above Ms necessary living expenses, It is in the interest of plaintiff that the amount fixed should be such that no further proceeding will be necessary to secure its payment. We have therefore concluded to reduce the amount of such weekly payments to $6 per week. This reduction will apply to all weekly payments now due under the decree. Defendant will, however, be required to make payment of an additional $4 per week in liquidation of the amount of the weekly payments so due and the attorney fees and costs allowed plaintiff in the decree rendered and in this decree. The decree will be modified accordingly and, as thus modified, it is affirmed, with costs to plaintiff.
Steere, C. J., and Fellows, Stone, Clark, and Bird, JJ., concurred. Moore and Wiest, JJ., did not sit. | [
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] |
Fellows, J.
This proceeding is instituted to secure the cancellation of a deed bearing date April 26, 1916, of certain premises consisting of a small house and lot located in Detroit. The plaintiff is a Polish woman of not outstanding intelligence, and was at the time of the execution of the deed upwards of 70 years of age. The property had come to her from her husband then deceased. Plaintiff had 6 children, among them a daughter named Annie who remained with her mother after the others were married. Plaintiff seems to have been quite fond of Annie and to have had great confidence in her. One of the sons, who was married, rented the back part of the house, and she and Annie occupied the remainder. They seem to have had quite a struggle for existence; $800 was borrowed and a mortgage given on the home. At the time the deed was signed plaintiff was at work earning $6 or $7 a week, and Annie was at work for the Ford Motor Car Company earning $3.40 per day. About this time the Ford Company announced its $5 per day for employees plan. Annie conceived, whether rightly or wrongly the record does not disclose, that the wage of $5 per day would only be paid to home owners. Plaintiff signed a deed of the premises to Annie, being the deed in question, and had it recorded. She no longer went out to work and Annie received the wage of $5 per day which was more than they were jointly receiving before. They continued living together, and so far as. this record discloses Annie providing the means to live on, except the small amount of rent from the back part of the house. This continued until Annie married the defendant Andrew Nadolny when he became a member of the family. From that time until Annie’s death he provided for the family. Annie died in February, 1920, leaving a babe but a few weeks old. A few days after her death defendant Andrew took a considerable portion of the household goods and with the baby went to his parents to live. Shortly after that he caused himself to be appointed administrator of his wife’s estate and guardian of the minor child, and as such administrator demanded of plaintiff the payment of rent for the premises and threatened that in default of such payment he would evict her therefrom. Thereupon this bill was filed making Andrew Nadolny defendant in his individual capacity and as administrator of his wife’s estate and as guardian of his minor child. He disclaims having any personal interest but as administrator and guardian claims the premises by virtue of the deed in question.
Plaintiff claims in her bill that Annie importuned her to make the deed in question so that she could show it to the Ford company and get her wages raised and agreed that she would care for her mother as long as she lived. She insists that the deed was. executed pursuant to such importunities, that it was not to become effective until plaintiff’s death and then only in case Annie had furnished such care. She claims there was no delivery with intent to pass a present title and that there was no consideration other than the agreement for support. The trial judge gave plaintiff a decree basing his conclusion on his finding that there was no intent to pass title to Annie. Defendant appeals on behalf of the estate and the minor child.
We are persuaded that the learned trial judge reached the right result but. we arrived at such conclusion from a slightly different angle than he did. We are convinced by the testimony and the surrounding circumstances divulged by this record that there was a manual delivery of the deed to Annie, and we are likewise convinced that the consideration of the deed and its only consideration was an understanding that Annie should furnish support and maintenance, care and attention to her mother during the balance of her life. The direct testimony on both of these propositions is meagre, but the surrounding circumstances are convincing. As to the first of these propositions it may be said that one of the purposes of the execution of the deed was that it should be exhibited by Annie to the Ford company; it is quite probable that it was given to her for that purpose and was then returned to the mother to be kept by her. Upon the other proposition we find that as soon as the deed was signed, Annie took upon herself the maintenance and care of her mother, and plaintiff from that time ceased to go out to work. When Annie married, her husband came to the mother’s home and they together took up the maintenance and care of the mother. While it is doubtful that she required much care, her maintenance was provided for and both Annie and her husband by their conduct assumed that she was entitled to it. We have said the testimony was meager; defendant offered no proof, and we disregard such testimony of plaintiff as crept into the record which was of such facts as were equally within the knowledge of the deceased. But where a child sustains confidential relations with the parent as this record discloses Annie sustained to her mother, and such parent strips himself or herself of all his or her property and means of support by a conveyance to the child, some duty devolves upon the grantee or those claiming under such grantee to show the validity of the transaction. As was said by this court, speaking through Mr. Justice Steere in Williams v. Williams, 198 Mich. 1:
“That the presumptions are against transactions of this nature and they are critically scrutinized by the courts, putting the burden of proof upon those seeking to sustain them, requires no citation of authority. In view of plaintiff’s age, their kinship, and the confidential relations shown to exist between them at the time, it was incumbent upon defendants to show that the agreement with their father was not to hi^ disadvantage, was fair to him and of his own free will, that no advantage was taken by them of his age, mental condition, or confidence in them, that they have fulfilled the terms of their agreement, in letter and spirit, so far as permitted by him, and are ready and willing to continue so to do.”
Plaintiff at the age of 70 by this conveyance conveyed to her trusted daughter Annie every dollar’s worth of property she possessed save only a few household goods. She expected, and Annie understood, that by such conveyance she had paid for a home and maintenance during her declining years. Annie was a good girl and! as long as she. lived performed her duty to plaintiff. Her death put an end to further performance on her part, and she left as her sole heir a babe in arms who, of course, could not assume performance of her duties to plaintiff. Under such circumstances, is a court of equity powerless to grant relief? The former decisions of this court answer this question in the negative. In Crips v. Towsley, 73 Mich. 395, this court, speaking through Mr. Justice Campbell, said:
“Nothing could justify completely stripping an old and feeble man of .his property, who, if not otherwise deficient beyond the usual weakness of age and illness, was unable, through deafness, to know all that went on near him. There can be no doubt that if he meant to do anything to secure the enjoyment of his estate by his daughter, he expected to be supported during his life, and that without some assurance of this there could have been no conceivable reason for parting with his all. It is shown by the record, not only that Mrs. Towsley made no agreement, verbal or written, to support her father, but that she never had any idea of changing their relations so as to bind her further than she was bound by natural duty. It was not proper for an attorney called in to advise an aged man in disposing of his estate to give him to understand that he could safely act as it is' claimed he did act. Furthermore, Mrs. Towsley was not the head of her family, and could not bind her husband, to furnish her father with what he needed. Her death, or her husband’s refusal, would leave the old man helpless. It is not necessary to review all of the numerous considerations which have led courts to deal with such performances as are set out in this record as unconscionable, whether wickedly designed or not. But it is impossible to believe, from testimony before us, that complainant understood that he was doing what defendants claim he did. Neither his conduct nor theirs is consistent with such a notion. And if he had done it, the nature of the transaction alone brings it clearly within the rules which disallow such ruinous performances in favor of relatives, who are bound to avoid accepting such benefits as no sensible man would bestow without some assurance of protection against ruin.
“If this arrangement falls short of conscious fraud, it is only because of an obtuseness of conscience that is not much better. Whatever children may think their due from parents, they should not seek to administer their estates till no longer within their living custody. That which has the effect of fraud on people who are practically helpless, is subject to the same consequences as if it were deliberate and actual fraud. Courts of. equity cannot allow such dealings to stand.”
Mr. Justice Moore, speaking for the court and citing numerous authorities to sustain the proposition, said in Lockwood v. Lockwood, 124 Mich. 627:
“The complainant for some reason was induced to make to her son and his children a deed of all the property she had in the world, except a little personal property, without any writing being given her in return providing for her maintenance and support. In the deed which was made, there was simply reserved to her a life estate in the farm. The son did not bind himself by any written agreement to pay the taxes or insurance, or to keep the premises in repair, or to maintain and support his mother. It is also beyond reasonable doubt that his home is made so unpleasant for his mother that it would be cruelty to compel her to live therein, and we also think it appears by a preponderance of the evidence that complainant was sent away from his home. The proofs disclose that the complainant had confidence in her son, and relied upon him implicitly. It was his duty to see that her interests were guarded, and that his promises made to her were carried out. Instead of doing so, he has obtained from her, for himself and children, all the property she has; and at the age of 80 years she is without property, and without the home which was promised her. Such a result cannot be permitted by a court of equity to stand.”
There has here been a failure of consideration and the deed was properly canceled and set aside.
We do not overlook the suggestion of defendant’s counsel that if we conclude that the bill should not be dismissed that the decree should be modified by limiting plaintiff’s interest to a life estate. Under the views we entertain, this would not be a proper decree under the facts of the case. As already stated, the deed, we think, was given to secure support during the balance of plaintiff’s life; it was not a testamentary disposition of plaintiff’s property and would not have been given except to provide for and secure such support. We regard the testimony of the scrivener as not prohibited by the statute, but have not considered anything testified to by plaintiff which was equally within the knowledge of the deceased.
The decree will be affirmed. Plaintiff will recover costs of this court.
Steere, C. J., and Wiest, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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] |
Mooee, J.
Daniel J. Kellar, the defendant, was convicted in the recorder’s court of the city of Detroit, on a charge of robbery while armed. Harry M. Krull testified he was robbed about 8:15 p. m. on the night of February 29, 1920; that while walking along the north side of Peterboro street in the city of Detroit, he was stopped for an instant at the center of the intersection of the street with an alley by two men, who stepped in front of him and ordered him to walk into the alley; that he obeyed the order, and while standing in the shadow of a nearby building the defendant covered him with a revolver, while the other removed from him $49.85 in cash, a cigarette case marked “H. M. K.” and a gold watch. This property except the money was later found in certain Chicago pawnshops, whose pawn tickets were found on the persons of one Chauncey Gavin and James Brindell. Sergeant William H. Killeen of the detective bureau of the Chicago police department arrested James Brindell, Chauncey Gavin and Earl Gamasche at about 8 o’clock in the morning of March 11, 1920, at a rooming house on Michigan avenue in the city of Chicago; later in the morning defendant Kellar was arrested at the same place on Michigan avenue where all four men had been rooming together. The men were searched by the detectives and three pawn tickets were found. Two of these pawn ticketsl were on the person of Chauncey Gavin, one of which under his own name called for a cigarette case marked “M.” which had been pawned under date of March 2d, at 11:15 a. m. in the Federal Loan Bank of Chicago. The other ticket found on Gavin’s person called for the cigarette case marked “H. M. K.” which had been stolen from Krull. This case was pawned under the name of Harry Kearn on March 2d, at 11:40 a. m. in Bomash’s pawn shop. The ticket found on James Brindell called for the watch which had been stolen from Krull) and was pawned under Brindell’s .own name on March 2d, at 11:15 a. m. in the Federal Loan Bank. On the day of defendant Kellar’s arrest a pawn ticket was found on his person, which called for a suit of clothes, pawned by himself on the 5th day of March, at 12:10 p. m. in Englander’s pawn shop.
Defendant Kellar’s contention was that he had never been in Detroit, and that he was in Chicago when Mr. Krull was robbed. The jury returned a verdict finding defendant Kellar guilty as charged in the information. He was later sentenced to be confined in the State prison at Jackson from 10 to 25 years, with the recommendation that he serve 15 years. Defendant’s counsel afterwards moved for a new trial upon the grounds of error and newly-discovered evidence, which motion was denied, whereupon a writ, of error was taken out to the Supreme Court.
There are many assignments of error; one that receives great attention from the counsel is that the trial judge erred by absenting himself from the court room during the greater part of the trial, counsel citing Meredeth v. People, 84 Ill. 479; Schintz v. People, 178 Ill. 320 (52 N. E. 903); Powers v. State, 75 Neb. 226 (106 N. W. 332); O’Brien v. People, 17 Colo. 563 (31 Pac. 230). A reading of the opinions in those cases will show they are clearly distinguishable from the instant case.
In the record before us there is nothing to indicate from the beginning of the trial until after sentence was pronounced that the trial judge was absent at any time. The only statement in the record that the court was absent is found in the affidavit of the defendant and in the affidavit of one of his attorneys, which were filed on a motion for a new trial. A calendar entry shows this motion was denied November 15, 1920. The record does not show any request that the trial judge file his reason for overruling the motion for a new trial, or that he did file any reasons. Counsel also insist that there was reversible error because the trial judge was absent and the verdict was received by the clerk in his absence.
The record reads:
“Verdict. The jury returned a verdict against defendant of guilty as charged. Before the Honorable William M. Heston, judge of the recorder’s court, on October 14, 1920.”
We quote from the brief:
“It may be argued that counsel for defendant should have made more objections to the actions of the court in leaving the court room. We cannot believe, however, that such contention should merit serious consideration, for in the trial of a criminal case no counsel wisely could or should be expected to place himself in a position of criticizing the actions of the court when such objections would only serve to antagonize the court and jury and seriously jeopardize the interests of the defendant as well. The duties of the court are clear and explicit. It knows or should know its own duties and methods of handling the trial and conduct of cases, and if these duties are neglected or violated it seems to us that one exception is as good as a dozen. * * *
“The trial of the cause was conducted during the heat of a political campaign, in which one of the foremost accomplishments of the present court, which was constantly and repeatedly brought to the public’s attention, was the record in convictions of defendants on robbery charges. It is a known fact that the juries during the _ September term, of court fairly outdid themselves in obtaining convictions against those accused of this crime. At such a time and under such circumstances, what other impression could such action on the part of the court convey to the jury than that the court was clearly convinced of the guilt- of the defendant at the bar and consequently was leaving the matter entirely in their hands.”
Counsel have some duties to perform. This court must pass upon the record which is presented to us. Neither we nor the counsel are justified in going outside of the record. There is nothing to indicate that anything said or done in the campaign to which reference is made found any echo in the court room or was reflected in the proceedings. There is nothing in the record to indicate that during the trial any absence of the trial judge attracted the attention of either the defendant or any of his attorneys. At least it did not call out any request or any comment that appears in the record. Under these circumstances it cannot be said there was reversible error. See the cases cited by counsel for appellant which we have already mentioned in this opinion.
Counsel strenuously urge the court erred in not granting a new trial because the verdict was against the weight of the evidence. As already indicated the defense was that of an alibi. Witnesses were produced who testified that defendant was in Chicago, one of them testifying that he was dancing with her a great deal at a dance hall, known as the White City, and did not leave her until about 2 o’clock in the morning at her home. Another witness testified she had a talk with him as he was about to leave the dance hall. Other testimony was produced. The issue was sharply defined. Was the defendant in Chicago or was he at Peterboro street in Detroit at the time of the robbery?
We have already called attention to some of the testimony, we now quote briefly from the testimony of Mr. Krull:
“This man stepped in front of me and stopped me and says ‘step in the alley,’ and then I realized that something was going to happen and then I sparred for time by saying, ‘What’s the idea?’. He says, ‘Never mind, step into the alley.’ By that Í looked down and saw he held a gun on me by that time. He grabbed hold of my coat and pulled me, and I walked into the-alley with him. * * '*
“Q. Did you see the gun?
“A. Yes, I saw the gun.
“Q. What kind of a gun?
“A. Nickel plated.
“Q. Where was it pointed?
“A. Right against my stomach.
“Q. You say you walked in the alley with this man?
“A. Yes, he had hold of my overcoat.
“Q. How many were there?
“A. Two.
“Q. What happened after you got in the alley?
“A. Walked about thirty or forty feet, about the center of the lot on the east side of the alley. Then he says: ‘Throw up your hands,’ then I threw my hands in the air and he stepped back four or five feet with the gun still on me.
“Q. The man with the gun?
“A. Yes, and the other fellow that was with him. came up and went through my pockets. * * *
“Q. Is either one of those men in the court room at the present time?
“A. Yes
“Q. Which is?
“A. The defendant, Dan Kellar.
“Q. The one sitting at the table ?
“A. Yes.
“Q. Is there a street lamp near the intersecting-alley?
“A. Yes, there is one there. I remember seeing the light from it. I think it was on the south side.
“Q. How close to you was Dan Kellar during this, holdup?
“A. At first on the sidewalk right up close to me,, his. face was within eight inches or a foot of mine. Dan Kellar held the gun and I saw his face at that time. He didn’t have any mask on.
“Q. You are positive Dan Kellar is the man that had the gun on you?
“A. Yes.”
The court left the issue to the jury in a fair and full charge. The jury believed Mr. Krull and did not believe the alibi witnesses.
We have examined the other assignments of error but deem it unnecessary to discuss them.
The verdict and judgment are affirmed.
Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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] |
Bird, J.
Defendant was convicted in the recorder’s court for the city of Detroit of practicing medicine contrary to the provisions of the statute without a license, and remanded to the custody of the sheriff. He now petitions this court for a writ of habeas corpus claiming to be illegally detained by the sheriff because Act No. 369 of the Public Acts of 1919, creating the court which tried him, is unconstitutional and void.
This court in an early case refused to issue the writ of habeas corpus in behalf of one who had been acquitted of murder on the ground of insanity and committed to the insane asylum connected with the State prison. It was said by the court not to be the proper remedy. In re Underwood, 30 Mich. 502.
Practically the same question came before the court again in Re McGuire, 114 Mich. 80, and the court again refused to issue the writ, holding that the application must be ruled by In re Underwood, supra. Recently the question was considered by this court in Gildemeister v. Lindsay, 212 Mich. 299, upon appeal, where the authorities were reviewed at some length by Mr. Justice Stone, and the result reached that the constitutionality of the act creating the court could not be determined in controversies between private parties. Following this the case of People v. Kongeal, 212 Mich. 307, came from the recorder’s court to this court by writ of error, and one of the questions raised was the constitutionality of the act creating that court. This court refused to consider the point, holding it was ruled by Gildemeister v. Lindsay, supra.
The rule of practice on the question is very well stated in 12 Ruling Case Law, p. 1203, where it is said:
“It is the well settled general rule that on habeas ‘corpus it may be shown that the court under whose judgment or order the prisoner is deprived of his liberty had HO' legal existence, for if there was no lawful court the pretended trial and judgment was absolutely void. It is generally held, however, that this rule has no application to the case of die facto judges, and that a person convicted by a judge de facto, acting under color of office, though not de jure, and detained in custody in pursuance of his sentence, cannot be properly .discharged upon habeas corpus.” Citing authorities.
In view of the attitude heretofore taken by this court that the recorder’s court is a de facto court the remedy of habeas corpus is not the proper remedy to test the constitutionality of the act creating the court, the prayer of the petition must be denied.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Bird, J.
Plaintiff was an employee of the Linderman Steel & Machine Company in Muskegon. On the evening of December 12, 1918, after leaving his work, he went outside, cranked his automobile and backed it onto defendant’s’ track, where it stalled and was run into by one of defendant’s interurban cars. The automobile was damaged and plaintiff was injured. Defendant being unwilling to compensate him he brought this suit. The declaration counted upon the negligence of defendant because of the excessive speed at which the ear was being operated and because the motorman failed to give warning of its approach. The trial resulted in a verdict for plaintiff of $8,000. Application was made for a new trial assigning numerous reasons. After considering them the trial court concluded that the verdict was excessive, but gave plaintiff the privilege of remitting $1,850, which was complied with in writing. The motion was then overruled. Defendant, being unwilling to pay this amount, has assigned error.
The error most complained of was the admission in evidence of an ordinance of the city of Muskegon, limiting the speed of defendant’s cars to 12 miles an hour. This was objected to by defendant on the ground that it was not pleaded. Considerable controversy ensued between counsel and between the court and counsel, after which the ordinance was admitted and read to the jury. It is argued by defendant that this was clearly in violation of the rule laid down in the following cases: Richter v. Harper, 95 Mich. 221; Gardner v. Railway Co., 99 Mich. 182; Granader v. Railway, 206 Mich. 367.
In the last case cited it was said:
“It was held in Richter v. Harper, 95 Mich. 221, that a city ordinance to be available in establishing the negligence of the defendant must be pleaded. In Gardner v. Railway Co., 99 Mich. 182, the rule was approved and the reason therefor stated to be that a common-law declaration will not support proof of a duty created by an ordinance, unless defendant is given notice thereof. This rule has since been adhered to by this court in many cases, although we have held that an ordinance, not pleaded, was admissible in evidence when offered solely for the purpose of affecting the question of plaintiffs negligence. Putnam v. Railway, 164 Mich. 342; Millette v. Railway, 186 Mich. 634.”
As indicating the use which was made of the ordinance by the trial court the following paragraph from his charge will show:
“It is also claimed by the plaintiff, and the ordinance of this city offered in evidence shows, that it was the duty of the defendant’s motorman to not drive street cars in this city at a rate of speed exceeding 12 miles per hour, and it is claimed by the plaintiff that this street car was at the time in question being driven at a speed considerably in excess of 12 miles an hour as provided by this ordinance. Now, gentlemen, I charge you that the fact that this street car was driven at a speed exceeding 12 miles an hour, if you find that to be a fact, does not of itself show that the motorman in so driving the street car was guilty of negligence, but it is á fact and the ordinance is a thing that you should take into consideration together with all the other evidence in the case and the circumstances surrounding this occurrence in determining whether or not the defendant’s motorman. was negligent.”
Plaintiff’s counsel contended in the trial court, and also in this court, that these cases did not apply because the ordinance in this instance was a part of the franchise under which defendant operated its cars in the city of Muskegon. We are unable to perceive any force in this distinction. The reason which supports the rule is that a mere common-law declaration will not support proof of a duty created by an ordinance unless pleaded. Whether the ordinance is a part of the franchise, or whether it stands by itself, it seems to us to make very little difference. In either event the effect is. the same. The situation in this case was very much as it was in Granader v. Railway, supra. There the principal contention was over the question of excessive speed. The same question was involved here. There was some testimony that the car was running as high as 30 miles an hour. The introduction of this ordinance providing that defendant should not exceed 12 miles an hour in the operation of its cars must have had its effect oh the jury.
We are of the opinion that the rule stated in the. cases cited is applicable to the present one, and that the trial court was in error in permitting the ordinance to come in upon the question of defendant’s negligence without being pleaded.
It will be unnecessary to consider the remaining assignments. .
The judgment is reversed and a new trial ordered. Defendant will recover its costs in this court.
Steere, C. J., and Moore, Fellows, Stone, Clark, and Sharpe, JJ., concurred.
The late Justice Brooke took no part in this decisión. | [
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Bird, J.
While plaintiff was attempting to cross on foot from the east side of Woodward avenue to the west side at Sproat street in the city of Detroit he claims he was run into by defendant’s automobile, thrown to the pavement and seriously injured. It is the claim of plaintiff that at the moment he was struck he was standing between the rails of the west track on Woodward avenue looking westward waiting for some south-bound automobiles to pass; that defendant was traveling, north on the east side of Woodward avenue; that before reaching him he swerved his automobile to the west for some purpose unknown to plaintiff and collided with him; and that he was later picked up by the occupants of the car while unconscious and driven toward a hospital, but later he became conscious and gave the driver his home address, and he was taken to the Brookins hotel on Sproat street, where he resided.
Plaintiff complains of defendant that he was guilty of negligence because he did not drive his car with reasonable care and caution; because he drove his car in violation of the traffic ordinance, on the west side of the highway, whereas he should have kept on the east side thereof; because no warning was given of his approach, as is required by the statute; and because of excessive speed.
Defendant admits that it was he and his two companions who picked plaintiff up and took him to his hotel, but he denies that it was his machine that collided with plaintiff. His claim is that he came along in his Cadillac car with two. companions; that they saw plaintiff lying on the pavement; and that he stopped his car and he and his companions lifted him into the ear and took him home.
The principal issue in the case was one of identification, whether defendant was driving the car which ran into him. The matter was submitted to the jury and they determined the question in favor of plaintiff’s contention and awarded him a judgment of $3,750.
The defendant assigns the following errors:
“(1) Briefly, the defendant claims that the court erred in permitting the plaintiff to testify in a haphazard way as to the length of his period of disability.
“(2) That the court erred in permitting the plaintiff to testify as to the state of his finances and the receiving in evidence of a savings bank account book.
“(3) The court erred' in permitting counsel for plaintiff to make inquiries as to whether or not defendant had been arrested for a misdemeanor.
“ (4) The court erred in permitting counsel to read ordinances of the city of Detroit to the jury, same being irrelevant to the issues involved.
“(5) The court erred in charging the jury to take into consideration sections of the motor vehicle law of the State of Michigan which were irrelevant to the issue.
“(6) The court erred in stressing the plaintiff’s claims.
“(7) The court erred in refusing to grant defendant’s request for a new trial because the verdict was against the weight of the evidence; and further erred in his failure to reduce the amount of damages because the same was excessive and because both the verdict and the size of the same was rendered because of bias and prejudice.”
We have read the testimony given by plaintiff concerning his disability and we are not impressed that there was any reversible error in admitting it. The court-permitted plaintiff, while a witness, to use his bank book as a memorandum to refresh his recollection. Some question had arisen concerning his earning power in the past and it was used wholly as affecting that question, and the trial court so stated to the jury when he made the ruling. What plaintiff had been able to earn in' the past was admissible and we see no impropriety in allowing the witness to refresh his recollection as to those earnings from the entries in his bank book.
Defendant, while on the witness stand, was interrogated as to the number of times he had been arrested and convicted. This is complained of as error. Defendant was asking the jury to believe his version of the accident. In determining the weight to be given to his testimony they had a right to know what manner of man he had been in the past. These questions had a tendency to elicit the information and were proper. Leland v. Kauth, 47 Mich. 508; Pratt v. Wickham, 133 Mich. 356; Lunde v. Railway, 177 Mich. 374; People v. Cutler, 197 Mich. 6; People v. LaLonde, 197 Mich. 76.
No error was committed in permitting counsel to read the city traffic ordinance to the jury. The declaration alleged that the movements of defendant were in violation thereof. Neither was error committed by the court in its charge in referring to the State automobile law, as it bore on one of the grounds of negligence, namely, the failure of defendant to sound his horn when approaching one walking in the highway.
Considerable is said in defendant’s brief about the court stressing plaintiff’s claims, and several cases are cited bearing on that practice. The difficulty about applying the rule in this case is that counsel has not called our attention specifically to any of these instances and an examination of the record does not disclose them.
Complaint is made because the trial court refused a new trial on the ground that the verdict was excessive and was against the weight of the evidence. The testimony shows that plaintiff was incapacitated by reason of the injury for nearly a year from doing any labor, and afterwards and up to the time of the trial he had labored under difficulties. If, to the loss of time, we add the pain and suffering endured by him on account of his injuries, we cannot say that the verdict was excessive within the meaning of the law.
The weight of the testimony was clearly one for the jury. The issue was a simple one. The question of identification of the person who drove the car that struck plaintiff and the question of the extent of his injuries and damages were the only questions involved. The defendant, as has been stated, testified that his car was not in collision with the plaintiff. He was corroborated by his two companions. On the other hand, a man engaged in the insurance business happened to be close by and saw the accident and noticed the number of the license on the car and jotted it down in his book. It was conceded that number was defendant’s. This witness appeared to have no interest whatever in the controversy, and, so far as the record shows, was reliable. The jury heard these men testify and took into consideration the interest which each had in the controversy. After doing so they rendered their verdict, and we feel it ought not to be disturbed.
The judgment will be affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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] |
Wiest, J.
October 2, 1911, in the circuit court for the county of Macomb, a decree of divorce was granted in this case and the care, custody and maintenance of the three children of the parties awarded defendant and provision made for their support in accordance with the then financial condition of plaintiff. Since the divorce defendant has been married twice and plaintiff once. October 20, 1919, defendant filed a petition in the case setting up that the allowance made for the support of the children in 1911 has been exhausted, that she has no property, means or income whatever, except a weekly wage of $20 as a saleslady, that the children are not self-supporting, and that Almond, the youngest, of the age of 18 years and 8 months, was ill and had for a long time suffered from a sickness requiring expensive hospital treatment and operations. She also alleged that plaintiff's financial condition had materially improved, and asked the court to revise the decree with reference to the support of the children.
Plaintiff appeared and by answer raised issues of fact. Upon, the trial of the issues the circuit judge determined that the two older children are able to take care of themselves but “the youngest boy is subnormal and will require some considerable attention and training to make him self-supporting eventually,” and that, “the father should assist the mother in giving this lad the training that will best fit him for use in society.” The court also found that “the plaintiff is now possessed of some $20,000 to $25,000, this includes about $6,000 that he inherited from his parents, and the savings from his wages as an employee of the Ford Motor Company, for about 7 years, but that he is tubercular and unable to work steadily, or at hard work.”
The decree as amended provides that plaintiff pay to defendant, annually, in quarterly payments, until Almond Demrick shall arrive at the age of 21 years, or until the further order of the court, the sum of $750; provided that defendant be first appointed legal guardian of Almond, and annually file in the circuit court a duly certified copy of her annual account as such guardian. Plaintiff brings the matter here on appeal.
We are fully persuaded that the evidence justifies the decree, and, considering the financial means of plaintiff, the need of special training for Almond in an effort to raise him to normal and the expense necessary to that end the father ought to be content with the decree. We approve of the finding made by the learned circuit judge, and the decree is affirmed, with costs.
Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Wiest, J.
(dissenting). Defendant was convicted in the recorder’s court for the city of Detroit, for .allowing a nuisance to exist on' premises owned by him, the nuisance consisting of no light or ventilation for “toilet rooms, and averred in the complaint to be contrary to section 5, chapter 133, of the compiled ordinances of the city of Detroit for the year 1912. The record does not show, but it is stated in the brief, of counsel for defendant, that the complaint was amended to charge defendant as owner of the building, and the Builders’ Construction Company, Vrikol Krivokucha and Jacob Caplan as tenants, each with allowing a nuisance to exist.
At the trial before the court without a jury the tenants were discharged and defendant was convicted and fined $100 and $5 costs.
The ordinance of the city under which defendant was prosecuted provides:
“Section 5. No owner or occupant or other person, having the control or management of any grocery, cellar, chandler shop, soap, candle, starch or glue factory, tannery, butcher shop, slaughter house, stable, barn, privy, sewer or other building or place, shall allow any nuisance to exist or remain on the premises of such owner or occupant or premises of which such other person has the control or management; nor shall any person, persons or corporation, owning or occupying any public or private street, alley, way or any premises) whatever, or having control or management thereof within the limits of the city of Detroit, create, or maintain any nuisance thereon.”
At the trial reference was made to the building code of the city and its provisions relative to light and ventilation for toilet rooms, but the code was not introduced in evidence nor does it appear in the record. The building code of the city, if material to the issue, should have been pleaded, at least by reference thereto-, and supplemented by proof that the nuisance-arose from failure to obey its mandate.
The- recorder’s court, .in the trial of city ordinance cases, may take judicial notice of the ordinances of the city; but upon a complaint specifying the ordinance under which it is made, if proof of som'e other-ordinance is essential to constitute the offense, good pleading requires that the accused be informed of the true nature of the charge against him.
We are of the opinion that the charge as laid in the cómplaint brought defendant to answer for allowing a nuisance in fact to exist upon his premises. It was proper to show the construction of the toilets and the lack of light and ventilation and that by reason of such want of light and ventilation odors came from the toilet rooms. If by reason of the construction of the toilets without light and ventilation offensive odors were discharged into the rooms then there was a nuisance in fact.
The building of defendant at 553-557 Myrtle street is a one story brick store building with four stores in front and no rooms for dwelling purposes. Each store has a toilet at the rear end of the room with a toilet seat around which is built a partition rising about 10 feet, leaving 8 feet from the top thereof to the ceiling of the room open, and a door entering the toilet room, but without light or ventilation except over the top of the partition. An inspector of the housing department of the board of health of the city visited the premises three times, and testified that he observed odors from the toilets coming over the tops of the partitions in the stores, and that he examined the toilets and found there was not sufficient ventilation. On cross-examination he testified that:
“There is a certain odor to any toilet that is used. I didn’t notice anything extraordinary about these, only it was enclosed in the outside room without any ventilation.”
There was testimony justifying the court below in fmri-mg the existence in fact of the nuisance complained of.
Noisome odors, alone, may constitute toilets a nuisance. City of Chicago v. Atwood, 269 Ill. 624 (110 N. E. 127).
It is strenuously insisted that appellant, as owner of the premises, is not subject to prosecution while ten ants are in occupation thereof, and reliance is placed upon the holding in People v. Kent, 151 Mich. 134 (14 Ann. Cas. 208), where the court had this same ordinance under consideration. In that case the nuisance complained of consisted of foul, nauseous, and unhealthful odors emitted from stagnant pools of water or sewage underneath the building, held by tenants under a five-year lease. The owners had no part in putting in the closets which discharged under the building.
We do/ not depart from that decision in holding that when the owner has established toilets on premises which must in the nature of things become a nuisance by their user, and leases the same and receives rent therefor, then whether in or out of possession, he may be held for allowing a nuisance to exist upon his premises. See City of Chicago v. Atwood, supra; Miller v. Fisher, 111 Md. 91 (73 Atl. 891, 50 L. R. A. [N. S.] 295).
It was not necessary to show the efforts made to get defendant to remedy the condition of the toilets, neither was the admission of testimony along, that line reversible error.
There was no error in discharging the tenants and in holding defendant under the ordinance and the evidence.
The conviction should be affirmed, with costs to appellee.
Bird, J., concurred with Wiest, J.
Fellows, J.
Laying aside the question of whether the maintenance of a toilet room without light and ventilation, which is the only basis of the complaint, is a nuisance per se, I am still unable to agree with Mr. Justice Wiest that the case of People v. Kent, 151 Mich. 134, is not controlling of the instant case. In that case this same ordinance was involved. The city there maintained that the ordinance applied to owners out of possession and that an amendment then recently made to it had enlarged its scope. The defendants, trustee owners, there insisted that it was not applicable to- owners who had leased the premises and were out of possession. We there said:
“A fair construction of this language is that it is directed to these classes of individuals, to wit, owners, occupants, or other persons, who at the time have the control or management of the premises and allow a nuisance to exist and remain thereon.
“The construction contended for on the part of the people is that the amendment ‘or other person having the control or management’ was added for the purpose of enlarging the scope of the ordinance to reach agents of nonresident owners, and that control or management is confined solely to that class, and that the prosecution in this case is permissible against the owners and tenants jointly. Under the charge in the complaint we do not so hold, for the reason that such construction would hold the owner liable for a condition he would have no right to abate. The entire possession and control of these premises were in Sloman & Co., tenants. The owner, for such purpose, would have no more right to enter than a stranger. No ordinance can be held valid which commands a violation of law. City of St. Louis v. Kaime, 2 Mo. App. 66. The owner or any other person mentioned in this ordinance as, amended who is not the occupant in possession and control of premises cannot be held guilty of allowing a nuisance ‘to exist and remain’ on such premises. The court was in error in this case in adjudging the trustee owners guilty.”
In the instant case the complaint does not charge the defendant Weber with having created a nuisance prior to his leasing of the premises but does charge that:
“on the 27th day of April, A. D. one thousand nine hundred and twenty, within the corporate limits of said city, to wit: on premises Nos. 553-557 Myrtle street, one J. F. Weber, No. 304 Gratiot avenue, did then and there unlawfully allow a nuisance to exist, said nuisance consisting of no light or ventilation for toilet rooms.” * * *
I think the question in the Kent Case is identical with the one presented on the complaint now before us; unless we desire to unsettle the law there pronounced, the defendant should be discharged. I am not persuaded that the Kent Case was improperly decided. I think the case should be reversed and the defendant discharged.
It should be noted that the Kent Case came to this court on writ of error. This undoubtedly justified counsel in assuming that to be the proper remedy. But this court has held that ordinance cases disposed of in the recorder’s court of the city of Detroit may not be reviewed in this court on error. Jackson v. People, 8 Mich. 262; Swift v. Wayne Circuit Judges, 64 Mich. 479, 487. Certiorari is the proper remedy. Jackson v. People, 9 Mich. 111.
Steere, C. J., and Moore, Stone, Clark, and Sharpe, JJ., concurred with Fellows, J. | [
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Clark, J.
This case is reported in 197 Mich. 68, and in 206 Mich. 153. Reference to the former opinions is suggested. In the first case plaintiff, Frank W. Fletcher, filed a bill for an accounting of a claimed partnership of himself, his brother Allan M. Fletcher, and his father, George N. Fletcher, as George N. Fletcher & Sons. A daughter,, Grace Fletcher-King, contended that there was no such partnership. The lower court found such partnership and that the father and sons were equal partners. The decree was reversed but “without prejudice to the rights of the parties: hereto to' have determined any claims they may have other than the existence of the general co-partnership which isi alleged in this bill of com-) plaint.”
In the second case a joint adventure was claimed by plaintiff, Frank W. Fletcher, and was decreed by the lower court, which decree was again reversed and the decree of this court stated:
“The decree of the circuit court for the county of Alpena, in chancery, shall be, and the same is herebv reversed and vacated, but without prejudice to the rights of any of the parties hereto to have determined on such accounting any claims for services that they may have against the estate of George N. Fletcher, provided that such account and claim for services be limited to the period be fore the death of George N. Fletcher, whether connected with the business of George N. Fletcher. & Sons or otherwise. Services rendered after the death of George N. Fletcher, whether for services as executor or otherwise, are hereby remitted to the probate court of Wayne county.”
On June 21, 1920, the cause was transferred from the Alpena circuit to the Wayne circuit. The bill of complaint was amended by adding a paragraph:
“That by the decision of the Supreme Court made in this cause on May 29, 1919, and the decree entered pursuant thereto, as complainant is advised and avers, said ca,use was remanded to the circuit court for the county of Alpena, in chancery, for an accounting without prejudice to the rights of any of the parties to this suit to have determined upon such accounting any claims against the estate of George N. Fletcher for services rendered prior to the death of said George N. Fletcher, whether connected with the business of said George N. Fletcher & Sons, or otherwise.
“That during the ten years next preceding the death of George N. Fletcher, complainant was in full charge of the business conducted -by said George N. Fletcher under the name of George N. Fletcher & Sons and the Alpena Sulphite Fibre Company and devoted his entire time thereto and to other interests of his father and that his services during said period were reasonably worth the sum of $15,000 per year. That said services, were rendered by complainant under the belief that said business of Fletcher & Sons was a copartnership and that he was an equal partner therein with George N. Fletcher and Allan M. Fletcher. That from the time of the rendition of said services until the several decisions of the Supreme Court in this cause, complainant believed that said business! was either a partnership or a joint adventure in which he had a one-third interest and that the hill of complaint herein was framed in accordance with that belief. That complainant has heretofore made no claim for compensation for said services because of his belief concerning the nature of said business.”
Upon the hearing there were two questions in dispute: (1) Whether the plaintiff, Frank W. Fletcher, was entitled to compensation for Ms service for a period of 10 years to the time of his father’s death in 1899; and (2) whether plaintiff, Frank W. Fletcher, should account for an item of $41,591, which in 1893 was charged against him on his father’s books and afterwards in the same year charged off to profit and loss. The decree /as against plaintiff, Frank W. Fletcher, upon the first question and in his favor upon the second. Plaintiff, Frank W. Fletcher, and defendants, Allan M.- Fletcher and Grace Fletcher-King, have appealed. To the records in the other cases has been added the record on this appeal by which further facts are presented. Defendants contend that service rendered by a son to his father is presumptively gratuitous and that the evidence in the case at bar does not rebut the presumption. In considering this question we shall also treat of the equities. We do not find an express contract to pay. Then before compensation can be allowed the proofs must be found to be such that a contract can be implied. By what rule shall the proofs be measured? The correct rule is thus stated:
“In 18 Cyc., at page 412, the rule is thus laid down:
" 'The courts regard with suspicion and disfavor claims brought against a decedent’s estate for personal services rendered by relatives, especially where the latter are members of his immediate family or household, as the presumption is that such services, between persons occupying such relations, are intended to be gratuitous.’
“Stress is laid by the writer in the concluding part of the paragraph on the fact that such claims are more favorably regarded when decedent and claimant do not live together. All the Michigan cases cited are, I believe, in harmony with this rule. While there need not be an express contract, in terms, the proofs must be of such a nature that one can be implied, and such proofs must overcome the presumption arising from the family relation. It is not enough, to prove that the care was rendered. The proofs must go further and show that they were rendered under such circumstances as rebut the presumption that they were gratuitous and justify the inference that the daughter expected to be compensated, and the father expected to pay her for the same.” In re Hoffman's Estate, 200 Mich. at page 470.
We apply the rule to the facts. George N. Fletcher, who died in 1899, aged 87 years, was engaged for many years in business at Alpena. He 'had important business interests in other States. In 1879 he and Albert Pack formed the partnership of Fletcher, Páck & Company to conduct a land and lumber business at Alpena. The term of existence of the partnership was fixed at 10 years.. They were equal partners. Frank W. Fletcher worked for this firm during its. existence and in 1882 became a partner and was permitted to have a one-tenth interest. Allan M. Fletcher, who also' had been employed by the firm, in 1882 obtained a one-fourth interest in a mill in which the partners owned the remaining interest. The firm was organized without capital. Funds needed were advanced by George N. Fletcher and by Mr. Pack. Frank W. Fletcher had principal charge of the operations of the firm. The profits, in a sum approximating $800,000, were divided at the expiration of the partnership.
In 1889, upon the winding up of the affairs of Fletcher, Pack & Company, George N. Fletcher launched another business in the name of George N. Fletcher & Sons. His children, Frank, Allan, and Grace, were then respectively 36, 30 and 28 years of age. Mrs. Fletcher, the mother, died in 1890. The daughter,' then unmarried, lived with the father and cared for his home until his death. From 1889 to 1898, Allan M. Fletcher worked at Rumford Falls, Maine, in a business in which the father was interested. Frank W. Fletcher was in general charge of the business of George N. Fletcher & Sons from its beginning until it ended with the death of the father in 1899. The business was mainly lumbering. The net profits were $290,574.48. In 1885, George N. Fletcher, for Fletcher, Pack & Company, began the construction at Alpena of a mill for the manufacture of sulphite fibre, but he took this business for himself and conducted it under the name of Alpena. Sulphite Fiber Company. In 1893, all charges for construction of the sulphite fiber plant, $185,110.91, were paid from profits of the business. In 1896 the business 'showed a net profit of $110,000, and George N. Fletcher of this profit then took $25,000 and gave a like amount to each of his three children, and again in 1898 of the profits of this business the father took $15,298.59 and gave a like amount to each of the three children and in that year the property of this business was taken over at a valuation, it seems, of $200,000 by a corporation, Fletcher Paper Company, having a capital stock of $200,000 fully paid. Of this stock, except a small number of shares taken by an employee, George N. Fletcher kept one-fourth and gave to each of his children one-fourth. Frank W. Fletcher was the general manager of the business of this corporation in 1898 and in 1899. He had principal charge of the sulphite fiber business from 1885 to 1889 and general charge thereafter to 1898. He also gave some attention to interests of his father in western States. During the period covered by his claim for services rendered his father, as stated, Frank W. Fletcher was married, had children and lived in his own home in Detroit apart from the father and daughter, Grace, who also lived in Detroit. Frank W. Fletcher, during those years, in addition to the amounts distributed by his father, received certain other sums from time to time generally characterized by counsel as withdrawals. In the late years of the' father’s life the care and management of these various interests and enterprises were upon Frank W. Fletcher, who in business was both capable and successful. The father depended upon Mm and knew his worth and his burdens.
Being married, having children, living apart from the father, surrendering his partnership interest in Fletcher, Pack & Company at the age of 36 years, having good business ability and training, did Frank W. Fletcher give to his father these services without expectation on his part to receive compensation, and without expectation on the part of the father to pay? This must be answered negatively. But how was he to be compensated? The proofs fairly establish the following conclusions: There was between this father and son mutual confidence. The son was permitted to withdraw and to have funds needed. The father intended that the son should have from the additions and profits of these enterprises compensation and reward. The son expected of the father compensation and return for his services. Both expected and understood that the remuneration for the services of plaintiff would be adequate, if not generous, and that the father would pay when and as he chose.
During the period for which compensation is claimed, plaintiff received from his father approximately §160,000, in which sum is not included the amount paid plaintiff upon the dissolution of Fletcher, Pack & Company but are included the item of §41,591 later referred to, the distributions from the sulphite fiber business, other withdrawals, and the stock given plaintiff in the Fletcher Paper Company which for this statement has been taken at a valuation of §50,000 but which we think much less than actual value as this business earned about 87% net profit on its capital during the five years preceding the organization of the corporation. But it is urged that these items were gifts, not compensation.
Allan M. Fletcher and Grace Fletcher also were favored by the father, but Allan was employed by the father, and Grace ministered to him in his late days. Plaintiff rendered the most important service to the father and received of the father nearly twice as much as the combined amounts received by Allan and Grace. With due regard to the relations of the parties', we think these distributions by the father were compensatory in their nature. These enterprises were regarded as family matters. No complaint seems to have been made, when, from the sulphite fiber business, on two occasions, the father distributed profits to the three children and himself in equal shares nor when, in 1898, the capital of the business was carried into the corporation and the stock divided in substantially the same manner. And the final distribution under the will of the father will give Ms estate substantially to his children in equal shares. For the services of the plaintiff the father has provided sufficient compensation. Entertaining this view, it is not necessary to consider the defense that the claim is barred by tbe general statute of limitations which is met by a contention of plaintiff’s counsel which in fairness to him should be stated:
“Where one in a mistaken view of the nature of his right, or of the proper remedy, enters upon a course of action that but for the mistake he would not have followed, equity will relieve against that mistake; and if the wrong remedy be originally pursued will not refuse relief by reason of the delay in seeking the right remedy, though that' delay be greater than the period of the statute of limitations.”
And it is likewise unnecessary to consider another defense that the claim is barred by the statute of non-claim, not having been presented within the statutory period to the probate court. Upon this point it is contended that jurisdiction of the subject-matter under former opinions has been retained by this court.
The item of $41,591. We shall not add to a long opinion a discussion of the facts as to this item. It seems to have been charged originally to Frank W. Fletcher and later, on his father’s books, charged off to profit and loss. As Judge Goff stated, it does not appear that the father in his lifetime ever objected to such entry or requested any correction of it. It may stand as he left it'.
The decree has had our careful attention. It is in all things affirmed. No costs will be awarded.
Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. Steere, C. J., did not sit. | [
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Wiest, J.
For many years, and up to the time of his death, Francis P. Dwyer and his brother, Dennis H. Dwyer, were copartners in the law business with offices in the city of Detroit. Francis was the manager of the finances of the firm, and from time to time' purchased real estate with partnership money for the firm but without consultation with Dennis, and made it a practice to take title in the name of Mary Bohan, a sister living in Chicago, doing so without her knowledge and without the knowledge of Dennis, and in some instances executing deeds, signing Mary Bohan’s name thereto as her attorney in fact. The record discloses no power of attorney given by Mary Bohan to Francis, and her want of knowledge of conveyances taken in her name indicates that no power of attorney existed.
February 1, 1920, Francis died after a two-days’ illness, leaving a will executed á few days before his death, in which he made certain bequests, and bequeathed to Dennis his law business with his interest in the firm of Dwyer & Dwyer, his law library and books of account, office furniture and all personal property connected with his law business. The will also provided:
“Sixth. I give and bequeath to my brother, Dennis H. Dwyer, out of the moneys I now have on deposit in my name in the Peoples State Bank of Detroit, Michigan, such portion as the books of account in my law office show to be due him as my copartner. The money on-deposit in the Peoples State Bank is mlade up of funds belonging to me personally and funds due my brother, Dennis H. Dwyer, which I have not paid to him because of our failure to balance our accounts. 1 hereby authorize my brother, Dennis H. Dwyer, my executor hereinafter named, to review said books of account and determine what sum of money is due him from me, and I will and direct that his judgment in this regard shall be final.”
It appears that Francis never disclosed to his brother the state of the firm finances. Dennis from time to time sought an accounting with his brother but the same was delayed and no accounting ever had.
The bill herein was filed by plaintiff as executor and trustee under the will of Francis P. Dwyer, deceased, and was amended so as to include as plaintiff Dennis H. Dwyer, as the surviving partner of the law firm of Dwyer & Dwyer, to discover and recover the property belonging to the estate and copartnership placed in the name of Mary Bohan without the knowledge of the surviving partner. All parties interested in the estate and the property in question are before the court. Defendant Mary Bohan made answer admitting that divers parcels of real estate and mortgages standing in her name in Wayne county were by virtue of grants and deeds from persons other than the deceased, and she claimed that such grants and deeds were made at the instance and request of the deceased who paid the consideration therefor, and averred the same to be exclusively her property, and by way of affirmative relief asked the court to decree-discovery in her favor as against plaintiff and hold plaintiff to account for the rents and income received by him. The other defendants made formal answer and the issues narrowed down between the plaintiff and Mary Bohan.
The record is voluminous and a reading of it fully convinces us that partnership moneys were invested by Francis in real estate and deeds thereto taken in the name of Mary Bohan without the knowledge or consent of Dennis and without the knowledge of Mary Bohan. It is clear from the evidence that Francis intended to have an accounting with his brother and in such accounting give Dennis his share of the real estate, but unfortunately such accounting was never had. We are fully persuaded by the evidence, disclosing the repeated declarations of purpose made by Francis to many of his attorney friends, that the deeds to real estate taken in the name of Mary Bohan were partnership matters, and that the confidence reposed in Francis by Dennis accounts for the fact that Dennis was unaware of such deeds until after the death of Francis. We are unable, upon this reeord, to determine the extent of the interest of the surviving partner in such real estate or the interest, if any, of the estate therein.
The real estate having been purchased by Francis with partnership funds and title thereto taken in the name of Mary Bohan, without the knowledge or consent of Dennis, would constitute a legal fraud upon Dennis if it be held that Mary Bohan has title beyond the reach of Dennis as surviving partner. The real estate purchased with partnership funds and intended for partnership purposes is considered in equity as personalty in the settling of the partnership affairs by the surviving partner. Dennis, as the surviving partner, has a legal right to the possession of the partnership property pending the winding up of partnership affairs.
“Where a surviving partner is also the executor or administrator of the deceased partner, he acts in a dual capacity, representing both the partnership and the deceased partner’s estate. His duties as surviving partner are practically the same as in any other case, to convert the assets of .the firm' into money and receive, hold and distribute the proceeds. And as such, it is his duty to ascertain and get together the deceased partner’s share in the firm property and assets and turn this over to the deceased’s separate estate.” 2 Rowley, Modern Law of Partnership, § 633.
Francis considered the property in question partnership property and purchased the same for the partnership with partnership funds and his failure to inform Dennis that he was placing the partnership property in the name of their sister, and the want of knowledge on the part of Dennis that he was doing so prevents the sister from invoking, in support of her paper title, the statute against resulting trusts.
We find no authority preventing us from doing exact justice in this case. We agree with the circuit judge that all of such property in Wayne county, now of record in the name of Mary Bohan, be decreed to Dennis H. Dwyer, as surviving partner, subject, however, to the rights, if any, of the estate of Francis P. Dwyer therein, as the same may appear upon the accounting.
The decree of the court below is affirmed, subject, however, to the modification that an accounting be had in this case of the copartnership affairs and between the estate and the copartnership and the relative rights of the estate and of the surviving partner to the real estate be determined in accordance with such accountings.
Steere, C. J., and Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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] |
Bird, J.
Plaintiff leased to defendant “the front rooms on the second floor in the brick block situated at 219 Bast Front street, Traverse City, for the term of two years from and after the 25th day of June, 1917,” etc. In the next paragraph of the lease, wherein defendant agrees to lease the premises, it reads: “And the said party of the second part does hereby lease the said premises for the term of one year,” etc. Defendant went into possession under this lease and occupied the premises for two years, when plaintiff served a' notice on him to quit. He did not vacate the premises, and plaintiff brought summary proceedings to eject him. The commissioner held defendant’s term under the lease had expired and rendered judgment of restitution in behalf of plaintiff. Upon appeal the case was tried before the court without a jury, and the same conclusion was reached. Defendant has brought the case to this court for review.
Defendant’s counsel contends that the summary proceedings were prematurely begun because defendant was entitled to a three months’ notice to quit, which it is conceded he did not have. His reasoning is that plaintiff leased the premises for one year and was permitted to hold over another year, and that he had entered on the third year and that this would entitle him to a three months’ notice to quit because he had become a tenant from year to year.
1. The real differences of the parties arise over an ambiguity in the lease. It will be noted that the grant ing clause of the lease conveys the premises for two years. In the next paragraph defendant agrees to lease them for one¡ year. This ambiguity as to time in the lease was explained by both parties without objection. Plaintiff testified that the lease was originally made for one year. Defendant desired it for five years, but he would not consent to this. Finally he did agree, to two years and the lease was changed in one place, but not in the other. Defendant does not disagree ( in any important particular with plaintiff’s version of. it. He testified: ¡
“The understanding was that the lease was to be for five years, but when I went down there to get it, it was made out for two years. The lease was made out seemingly for two years, part of it, and part of it for one year.”
It will be seen from this that the parties were practically in accord as to how the ambiguity occurred, in the lease. They both, however, understood it was-a lease for two years and both treated it as such. At-the conclusion of that timé it was the duty. of defendant to vacate the premises. His failure to do soon June 25, 1919, fully justified these proceedings andl the conclusions reached therein. He was not entitled to a notice to quit. Smith v. Smith, 144 Mich. 139. Before there could be any renewal of the lease under defendant’s theory it was not enough that he held over into the third year for a time, but there must be some act upon the part of the landlord which would indicate that he intended the lease should continue. Faraci v. Fassulo, 212 Mich. 216.
2. Objection is taken because judgment was rendered against defendant sureties on the appeal bond as well as himself. A judgment of $60 for rent was rendered for the time which elapsed from the termination of the lease up to the time the matter was de termined in the circuit court. We are impressed that this was justified by 3 Comp. Laws 1915, §§ 12794, 12795.
The judgment of the trial court is affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Sharpe, J.
The defendant Wienner, acting as receiver of the copartnership of which Harry Applebaum and Samuel Furstman were members, contracted to sell a two-family flat belonging to the firm to plaintiff. A down payment of $3,500 had been made, the .balance of the purchase price ($11,500) to be paid at the rate of $75 or more each month. When the abstract was completed, Wienner discovered that both Applebaum and Furstman had conveyed their interests to certain relatives. The plaintiff’s proofs show that an arrangement was then made by which the title was placed in Applebaum and a contract prepared for the sale by him and his wife to plaintiff. The $3,500 paid by plaintiff, less a commission to a real estate man, was paid at Applebaum’s request by Wienner to Furstman. The contract was drawn in duplicate. The Applebaums went to Wienner’s office to execute it, but by inadvertence only one copy was signed by Mrs. Applebaum. This Applebaum took with him, saying he wanted to show it to a man from whom he was making a loan, but assured Wienner that Mrs. Applebaum would sign the other when presented to her. This she promised to do when asked about it by Wienner over the telephone. When the copy was' presented to her by plaintiff, she said she would sign it when her husband came home but afterwards refused to do so. The upper part of the building was occupied by the Applebaums. The key to the lower part was delivered to plaintiff by Mrs. Applebaum in the presence of her husband.
While Mr. and Mrs. Applebaum contradict the plaintiff and his witnesses in many particulars, it is, we think, fairly established by. the proofs that the minds of the parties met on a-purchase and sale of this property and that Wienner was the agent of the Applebaums to deliver a copy of the contract to plaintiff. Plaintiff was justly entitled to the decree rendered, which required Mrs. Applebaum to execute the copy and provided that on her refusal the decree should stand in lieu thereof.
The claim is made that the copies of the contract are not duplicates. That retained by Applebaum is not in the record. It was miarked Exhibit 4. In preparing the record, defendants’ attorney thus describes it:
“4. Land contract, Harry and Anna Applebaum with Henry Goldstein (same as Exhibit 3 with additional signature of Anna Applebaum).”
A copy of the duplicate delivered to plaintiff was attached to the bill of complaint. There is no claim or even suggestion in the answer or the cross-bill filed that it was not a duplicate of that retained by Applebaum.
The decree is affirmed, with costs to plaintiff against the defendants Applebaum.
Steere, C. J., and Wiest, Fellows, Stone, and Bird, JJ., concurred. Moore and Clark, JJ., did not sit. | [
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] |
ON REMAND
Before: Beasley, P.J., and M. J. Kelly and M. Warshawsky, JJ.
M. J. Kelly, J.
This case is before us on remand from the Supreme Court for a decision on whether Detroit City Ordinance No. 556-H "unconstitutionally deprives property owners of their property interests without due process of law or just compensation.” 424 Mich 905; 384 NW2d 399 (1986). We had expressly declined to consider this issue in our earlier opinion for reasons stated therein. 146 Mich App 448, 457-458; 382 NW2d 482 (1985). Having now considered the issue as directed by the Supreme Court, we hold that Ord. 556-H does not deprive property owners of a property interest within the prohibitions of the state or federal due process clauses.
Defendants’ due process challenge to Ord. 556-H is a narrow one. Defendants argue that Ord. 556-H authorizes the city to confiscate privately owned property for a public purpose and thus involves the exercise of the city’s power of eminent domain rather than its police powers. Defendants then conclude that the omission of a provision in the ordinance requiring just compensation renders the ordinance violative of the property owners’ due process rights. Const 1963, art 10, § 2; Pennsylvania Coal Co v Mahon, 260 US 393; 43 S Ct 158; 67 L Ed 322 (1922); Smoke Rise, Inc v Washington Suburban Sanitary Comm, 400 F Supp 1369, 1381-1382 (D Md, 1975). We earlier held that Ord. 556-H was enacted under the police powers granted to Detroit as a home rule city. 146 Mich App 462-463. We again conclude that Ord. 556-H represents an exercise of the city’s police powers and we reject defendants’ reliance on the law of eminent domain.
Section 12-11-46.1 of Ord. 556-H sets forth the legislative findings on which the Detroit City Council relied in enacting the nuisance abatement ordinance:
(a) Scattered throughout the city are a large number of unoccupied dwellings which are constantly broken into, vandalized, used for unsanitary or immoral purposes and are potential fire hazards.
Os) There are many unoccupied dwellings in the city which, because of their vacant status, constitute hazards to the health, safety, and welfare of the public.
(c) Certain vacant dwellings have reached a stage of disrepair and deterioration which create a public nuisance or exert a downgrading or blighting influence on the surrounding neighborhood, resulting in discouraging neighbors from making improvements to properties and thus adversely affecting the tax revenue of the city.
(d) Throughout the city, the number of vacant and deteriorated dwellings constituting public nuisances has become so high that traditional means of abating such nuisances have been ineffectual, and blight and deterioration of emergency proportions have resulted.
(e) Currently, tax delinquent abandoned dwellings revert to the state and are then deeded to the city through the state tax reversion process. However, this process takes several years, during which time many dwellings are lost through vandalism and deterioration.
(f) Permitting families to repair and move into abandoned homes within the city will preserve the residential housing stock of the city, increase neighborhood stability and provide needed homes for Detroit families.
These stated purposes fall within the city’s powers to "provide for the public peace and health of its citizenry and promote the safety of persons and properties within its boundaries.” 146 Mich App 462, citing Cady v Detroit, 289 Mich 499, 514; 286 NW 805 (1939), appeal dis 309 US 620; 60 S Ct 470; 84 L Ed 984 (1940), and Butcher v Detroit, 131 Mich App 698, 703; 347 NW2d 702 (1984), lv den 419 Mich 917 (1984). Although these goals, if achieved, will no doubt benefit the public, we are not persuaded that the taking authorized under Ord. 556-H is for a "public purpose” as that term has evolved under the law of eminent domain. Most significantly, Ord. 556-H does not impose upon the property owner a burden which should be borne by the public. See Penn Central Transportation Co v New York City, 438 US 104, 123-124; 98 S Ct 2646; 57 L Ed 2d 631 (1978); Butcher v Detroit, supra. In a disordered society, vacant houses develop into public nuisances, as that term is defined in Ord. 556-H, partly because of the action or inaction of their owners. It is neither unfair nor unjust for the city to impose the burden of abating these nuisances upon the individual owners rather than upon the public as a whole. Neighborhoods don’t blight overnight.
Although we reject defendants’ reliance on the law of eminent domain, our conclusion that Ord. 556-H represents an exercise of the city’s police powers does not entirely resolve the issue of whether the ordinance unconstitutionally deprives property owners of their property interests without adequate compensation. See Loretto v Teleprompter Manhattan CATV Corp, 458 US 419; 102 S Ct 3164; 73 L Ed 2d 868 (1982); Smoke Rise, Inc, supra. A statute or ordinance authorizing physical occupancy of property without compensation to the property owner must be reasonable under the surrounding circumstances. Smoke Rise, Inc, supra. Before considering the reasonableness of the occupancy authorized under Ord. 556-H, we find it helpful to visit a few of its procedural provisions.
Ord. 556-H does not by itself transfer title of property to the city or to the nuisance abatement contractor. Transfer of title must be achieved by the city through an action to quiet title, MCL 600.2932; MSA 27A.2932, or through delinquent tax proceedings, MCL 211.47; MSA 7.91. Ord. 556-H simply creates a temporary right in third parties to enter, occupy and repair a vacant home which has been declared by lawful authority to be an unlawful nuisance. At the end of the abatement period, the city will have obtained title to the property through prescribed judicial proceedings so that the property may then be sold by the city to the nuisance abatement contractor. Ord. 556-H, § 12-11-46.5(g). We note that the property owner is notified of the activity on his or her property at all stages of the abatement process and is provided numerous opportunities to assert ownership of the property, thereby terminating the nuisance abatement contract. It is significant that defendants in this case do not assert any due process challenge to the notice and hearing provisions of Ord. 556-H.
Since Ord. 556-H does not authorize permanent occupancy of private property by third persons, defendants’ reliance on Loretto, supra, is not dis-positive. The Supreme Court in Loretto, repeatedly emphasized that its decision is based upon the permanency of the government-authorized occupancy challenged therein. Defendants’ reliance on Loretto stems from an erroneous interpretation of Ord. 556-H as authorizing the city to take title to real property._
Correctly interpreted, Ord. 556-H simply amends the city’s original building code and creates an alternative to demolition or costly repairs by government or third persons who do not gain rights to occupy the property. Defendants agree that the city may authorize a third party to enter private property in order to demolish a building identified as a public nuisance and that the property owner has no right to just compensation for this taking. Defendants further admit that just compensation is not required where the city contracts with a third party to repair a building identified as a public nuisance. It is the nuisance abatement contractor’s occupancy of the property while making repairs which defendants now challenge as unconstitutional.
Defendants, however, fail to adequately distinguish between a taking authorized under the original building code and the taking authorized under Ord. 556-H. Under both the original building code and Ord. 556-H, third parties are authorized by the city to enter onto private property for the purpose of abating a public nuisance. Although the entry and physical possession authorized under Ord. 556-H extends the duration of the physical occupancy and allows the third party to make general use of the property while abating the nuisance, obviously such possession is not more intrusive than demolition.
In any event, the dispositive inquiry is whether this extended physical possession is reasonable under the circumstances. We believe that it is. As noted by Justice Stevens in Young v American Mini Theatres, Inc, 427 US 50, 71; 96 S Ct 2440; 49 L Ed 2d 310 (1976), cities "must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” After hav ing determined that existing mechanisms were ineffective in attacking the perils of abandoned homes scarring its neighborhoods, the city’s legislative body enacted Ord. 556-H as an alternative method of abating these public nuisances. Defendants have failed to carry their burden of proving that this alternative is unreasonable and, therefore, unconstitutional. Van Slooten v Larsen, 410 Mich 21, 42; 299 NW2d 704 (1980). Ord. 556-H authorizes only a temporary physical possession of property for the purpose of abating a public nuisance and relies upon other, well-established judicial processes in providing for the transfer of title to property. Built into the ordinance are ample notice and opportunity provisions which protect the right of the property owner to terminate the nuisance abatement contract at any point. Given the nature of the intrusion, the purpose sought to be accomplished and the ease with which a property owner may terminate a nuisance abatement contract, we cannot say that Ord. 556-H constitutes an unreasonable exercise of the city’s police powers.
Defendants briefly argue that Ord. 556-H is arbitrary and discriminatory because property owners will be treated differently based on the whims of nuisance abatement contractors regarding which houses will be occupied. While it is true that some houses capable of rehabilitation will be the subject of nuisance abatement contracts while others will be demolished or repaired by nonoccupant third parties, this difference in treatment is neither arbitrary nor unfair. We hold that it is a reasonable effort to solve a difficult problem. It may not work but it should be tried.
Defendants raise several other issues on appeal which we decline to address because the Supreme Court remanded this case to us for the sole purpose of considering defendants’ due process challenge.
Affirmed.
As evidenced by their brief on appeal after remand, defendants apparently believe that § 12-11-46.6 authorizes the city to seize title to the property upon which a nuisance is located. However, that section merely creates a statutory presumption of intent to abandon which may then be asserted in an action to quiet title.
Defendants do not challenge the constitutionality of either of these two judicial proceedings.
The maximum period during which the city may contract with a nuisance abatement contractor is thirty-six months. | [
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] |
Per Curiam.
Plaintiff appeals as of right from the order entered in circuit court granting defendants City of Farmington Hills, Albert Havner, Jane Kolasa and John Nichols’ motion for summary judgment on the basis that the strip search to which plaintiff was subjected by defendants was not unreasonable and, therefore, defendants were not liable for any violation of plaintiff’s constitutional rights under 42 USC 1983. We are asked only to review the trial court’s finding with respect to the constitutionality of the strip search. We find that the search was unreasonable and reverse the order of the trial court and, pursuant to the stipulation between the parties, remand the case for trial on plaintiff’s remaining claims.
The pertinent facts were adequately set forth by the trial court:
The Court makes the following findings of fact. Plaintiff Gayna Willing was employed by the City of Farmington Hills as a community service officer attached to the police department.
On December 11, 1979, another employee reported that she had lost $904.00. After an investigation, a warrant was issued for plaintiff’s arrest on the charge of larceny over $100.00.
Because the alleged crime involved an employee attached to the police department, Police Chief John Nichols, a defendant here, maintained close scrutiny over the matter. He directed Sergeant Albert Havner, also a defendant here, to effectuate the arrest as soon as possible and, if plaintiff was wearing a uniform, to have it removed, before sending her to the Oakland County Jail, for plaintiff’s own protection.
On December 23, 1979, at the Farmington Hills Police Station, Sgt. Havner arrested the plaintiff. Sgt. Havner called in a female officer, Jane Kolasa, also a defendant here, to assist in the arrest.
At the time of the arrest, plaintiff was wearing her uniform. Sgt. Havner gave Officer Kolasa a standard institutional paper garment, told her to take the plaintiff into the ladies’ room, and have her put the garment on.
The two (2) women went to the ladies’ room, which the plaintiff agrees was visually secure, and Officer Kolasa stood near the door. The plaintiff removed all of her clothes. Officer Kolasa asked the plaintiff to bend slightly, and walked around her; Officer Kolasa asked the plaintiff to squat slightly, looked at her, and may have walked around her again. Plaintiff agrees that Officer Kolasa never touched her or verbally or physically abused her in any way.
Plaintiff donned the paper garment, and was placed in a cell by herself until she was transported to the Oakland County Jail.
Plaintiff seeks to impose liability on the City of Farmington Hills and its employees pursuant to 42 USC 1983 which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The Fourth Amendment prohibits unreasonable searches and seizures. United States v Sharpe, — US —; 105 S Ct 1568; 84 L Ed 2d 605 (1985). Plaintiff claims the search which took place herein was unreasonable.
The reasonableness of a search and, therefore, its legal validity depends on the facts and circumstances of each case:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. [Bell v Wolfish, 441 US 520, 559; 99 S Ct 1861; 60 L Ed 2d 447 (1979).]
In finding the search at issue herein reasonable, the trial court relied on Dufrin v Spreen, 712 F2d 1084 (CA 6, 1983). In that case, the plaintiff was arrested on the charge of assault with a broom handle. She was taken to a small room by a matron, who required her to remove her clothes. The matron then observed the plaintiff from the front, asked her to bend over and then viewed her from the rear. She was then required to put on a prison uniform. The Court found the search to be reasonable, noting that the plaintiff was charged with a violent felony, that there was a duty to confine the plaintiff until properly relieved, that the plaintiff would ultimately come into contact with the general prison population, that the search was only visual, that the search was conducted by a female attendant in a private room, and that there was no claim of offensive behavior by the matron.
The trial court herein found the instant case to be analogous to Dufrin. We disagree. Here, plaintiff was known to the arresting officers and they had no apparent reason to suspect that she was armed or that she had contraband on her person. The arrest took place twelve days after the theft, when plaintiff had just arrived at work, so it was not reasonable to expect that plaintiff had the stolen property on her person or was armed. Further, unlike the plaintiff in Dufrin, plaintiff herein was not suspected of a violent felony but, rather, of a nonviolent theft offense. Moreover, the original purpose of having plaintiff remove her own clothes and don jail garb was so that she would not be harmed once lodged at the county jail among the general jail population. Turning this into a strip search is unreasonable to us. Hence, we find the strip search at issue to be an unreason able search and seizure in violation of the Fourth Amendment.
Because the parties stipulated that the only issue to be decided on appeal was the constitutionality of the strip search, we decline to review the issue of defendants’ liability. Although the trial court found defendants City of Farmington Hills and Police Chief Nichols not liable under 42 USC 1983 for implementing a policy of harassment, the trial court erroneously discussed the issue of harrassment separate from that of the strip search. As a result we are unable to determine the trial court’s findings of liability on the part of all the defendants with respect to the strip search. Hence we direct the trial court to resolve that issue on remand. We urge the court to consider defendants City of Farmington Hills and Police Chief Nichols’ liability in light of Monell v Dep’t of Social Services of New York, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978), and the other individual defendants’ liability in light of Fann v City of Cleveland, 616 F Supp 305, 314-315 (ND Ohio, 1985).
In conclusion, pursuant to the parties’ stipulation, upon a finding by this Court that the strip search was unconstitutional, we remand the case to the trial court for further proceedings with respect to the defendants’ liability under 42 USC 1983 and plaintiff’s remaining claims.
Reversed and remanded for further proceedings. | [
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Per Curiam.
Plaintiff appeals as of right from the January 7, 1986, order of Ingham Circuit Judge Jack W. Warren, sitting in the Court of Claims, dismissing with prejudice for no progress plaintiff’s wrongful discharge suit pursuant to MCR 2.502. The judge found that plaintiff failed to show that progress was in fact being made in the case and that the failure to prosecute was due to the fault or lack of reasonable diligence of the plaintiff. Plaintiff’s attorney argued unsuccessfully that though no discovery had taken place in the past year, he was ready for trial because sufficient discovery had been conducted in prior administrative proceedings before the case was filed in the Court of Claims. Plaintiff also asserted that defendant had cancelled its deposition of plaintiff in the past year and that he had been waiting for defendant to reschedule the deposition. The trial court rejected plaintiff’s demand for a trial date at the January 7, 1986, hearing and ruled that, since there had been no other trial demand by plaintiff, the case was dismissed with prejudice.
The facts indicate that on August 13, 1981, plaintiff was discharged from his employment with defendant. Plaintiff exhausted his administrative remedies with defendant, which, on April 14, 1982, affirmed his discharge. He then erroneously filed civil suit in the Wayne Circuit Court, which granted accelerated judgment on the basis that his claim was exclusively within the jurisdiction of the Court of Claims. This Court affirmed that decision in an unpublished opinion per curiam decided October 18,1983 (Docket No. 66449).
Plaintiff commenced suit in the Court of Claims on October 26, 1983. Defendant answered on or about November 18, 1983. Plaintiffs deposition was originally noticed for December 20, 1984, and then adjourned to January 10, 1985. Defendant’s attorney apparently cancelled the deposition for personal reasons, and it was never rescheduled. Plaintiffs attorney states that when he was notified in November, 1985, that the case had been placed on the no-progress docket, he contacted the court and was told to bring his trial demand at the January 7, 1986, hearing. We conclude that the trial court erred as a matter of law by dismissing the case with prejudice for no progress under MCR 2.502.
MCR 2.502, Dismissal for Lack of Progress, provides in pertinent part:
(A) Notice of Proposed Dismissal. At least once in each calendar quarter, the court may notify the parties in those actions in which no steps or proceedings appear to have been taken within one year (182 days in district court) that the action will be dismissed for lack of progress unless the parties appear as directed by the court and show that progress is in fact being made or that the failure to prosecute is not due to the fault or lack of reasonable diligence of the party seeking affirmative relief. The notice shall be given in the manner provided in MCR 2.501(C) for notice of trial.
(B) Action by Court.
(1) If a party does not appear as directed by the court, or does not make the required showing, the court may direct the clerk to dismiss the action for want of prosecution. Such a dismissal is without prejudice unless the court specifies otherwise.
(2) An action may not be dismissed for lack of progress
(a) if it is set for trial,
(b) if a pretrial conference is scheduled, or
(c) before the date specified for completion of discovery under MCR 2.301.
Our Court recently construed this court rule in a wrongful discharge case involving the same defendant who was represented by the same law firm in the Court of Claims. In Denham v University of Michigan, 151 Mich App 77; 390 NW2d 204 (1986), Court of Claims Judge Robert Holmes Bell dismissed the case when the plaintiff failed to appear at the time of the general "no progress” call. Upon rehearing, the judge refused to reinstate the case, after ruling that the plaintiff had failed to show that the lack of progress was not due to her fault or lack of due diligence. Judge Beasley, writing for this Court, found that the Court of Claims abused its discretion in dismissing the plaintiffs case solely on the basis that neither the plaintiff nor defendant filed a demand for a pretrial and trial as required by the Ingham Circuit Court Local Rules.
Defendant asserts that this case is distinguishable from the fact situation in Denham because significant discovery had taken place in that case and the failure to file a demand for trial was the only cause for lack of progress in that case. Defendant argues that in this case, by contrast, plaintiff failed to prosecute the case in any way. Defendant, citing Eliason Corp, Inc v Dep’t of Labor, 133 Mich App 200, 204-205; 348 NW2d 315 (1984), contends that plaintiffs discovery activities in his prior administrative hearing, the investigations conducted by the Equal Employment Opportunity Commission and by the Michigan Department of Civil Rights, do not excuse his inactivity in the Court of Claims. Defendant adds that no abuse of discretion will be found if there is "any justification in the record” for the trial court’s dismissal with prejudice for no progress. Hurt v Cambridge, 21 Mich App 652, 658; 176 NW2d 450 (1970).
We disagree with defendant and find that in this case the trial judge erred as a matter of law. While plaintiff erroneously asserts that the one-year discovery cutoff period from the time of filing the complaint under MCR 2.301 had just passed in November, 1985 (actually two years had passed), apparently no discovery cutoff had ever been set under the former court rule which was effective at the time the suit was filed. MCR 2.501(A)(1), concerning scheduling trials, provides:
(1) Following the time of completion of discovery as determined under MCR 2.301, the court shall schedule a pretrial conference under rule 2.401, scheduled the action for mediation under MCR 2.403, or schedule the action for trial. [Emphasis added.]
Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.502, Author’s Comment, p 11, states in relevant part:
At the conclusion of the time set for discovery, the court must set the action for pretrial or trial. Thus all actions in which an answer has been filed are precluded from the operation of MCR 2.502 until trial or other disposition of the action is completed.
Judge Beasley in Denham, supra, p 80, points out that the Court of Claims has followed the Ingham Circuit Court Local Rules since the Court of Claims was made a division of the Ingham Circuit Court in 1979 pursuant to MCL 600.6404; MSA 27A.6404. However, while the Ingham Circuit Court (Thirtieth Judicial Circuit) Local Rules may have formerly required a party to file a demand for a pretrial and trial before a case will be put on the docket calendar, the current Local Court Rules which became effective on March 1, 1985, with the new Michigan Court Rules contain no such provision. See Michigan Rules of Court 1986 (West Publishing Co), pp 755-760. Thus, as the commentators suggest, absent such a local court rule, the trial court may not dismiss this case because the basis for dismissal is the court’s own noncompliance with the MCR 2.501 provision that the court itself must set the case for trial.
Because the trial court erred as a matter of law in dismissing plaintiff’s lawsuit, the decision is reversed and the case is remanded for further proceedings.*
Reversed and remanded.
In circuits which have approved local court rules requiring that one of the parties file a demand for trial, etc. before trial or pretrial is scheduled, those cases in which no such demand is filed within one year from the close of discovery are also subject to dismissal under the provisions of Rule 2.502. The authors would note, however,that the individual circuit must have passed a local court rule altering the provisions of MCR 2.501(A) before it may dismiss a case under MCR 2.502. If it has not, but simply possesses an informal procedure calling for such filings, the authors question how the court may dismiss an action when the basis for dismissal is the court’s own noncompliance with MCR 2.501, i.e., if the court had complied with MCR 2.501 and independently set the case for trial, the case would not be subject to dismissal under MCR 2.502.
Even if we concluded that the trial court was not wrong as a matter of law in dismissing the case, we would be constrained to hold that the trial judge abused his discretion in doing so. The Denham Court cited the following test articulated in Heaney v Verson Allsteel Press Co, Inc, 64 Mich App 597; 236 NW2d 155 (1975), to determine if a dismissal for lack of progress was appropriate:
(1) whether the defendant could avoid the delay by simply noticing the case for trial; (2) whether the lack of progress was deliberate or unexplained; (3) whether the plaintiff was pursuing the claim diligently; and (4) whether the defendant had shown that it was actually prejudiced by the delay. [151 Mich App 82.]
Applying these factors to this case defendant could have filed its own demand for trial and avoided the delay. Second, the lack of progress was at least to some degree attributable to defendant, which cancelled and never rescheduled the deposition of plaintiff. Third, whether or not plaintiff was actually pursuing his claim with diligence, he stated at the hearing that his case preparation was complete and he was ready for trial. Finally, defendant offered nothing at the hearing or in its appeal to suggest that it was actually prejudiced by the delay.
Defendant’s focus on plaintiffs failure to prosecute is not persuasive. Plaintiff should not be required to "push” defendant to reschedule his deposition in order for plaintiff to avoid dismissal. While Eliason Corp, supra and this Court’s recent decision in Sand v General Motors Corp, 155 Mich App 330; 399 NW2d 510 (1986), are predicated on the plaintiffs’ lack of discovery efforts and the "any justification” standard for affirmance, neither principle justifies dismissal in this case. | [
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] |
R. B. Burns, P.J.
Defendant was charged, inter alia, with operating a vehicle while under the influence of intoxicating liquor, MCL 257.625(1); MSA 9.2325(1), operating a vehicle while possessing a blood alcohol content of 0.10 percent or more, MCL 257.625(2); MSA 9.2325(2), and operating a vehicle while impaired, second or subsequent offense, MCL 257.625b(l) and (3); MSA 9.2325(2X1) and (3). The district court dismissed these counts and the circuit court affirmed the dismissal. The prosecutor now appeals and we affirm.
After his arrest, defendant was taken to the Lake Orion Police Department police station by Officer Jeff Matte. At the station, defendant was read his rights concerning submitting to an alcohol test, including the right to have a blood test administered by a person of his own choosing. See MCL 257.625a; MSA 9.2325(1). Defendant was given a Breathalyzer test and, thereafter, requested an independent blood test. Officer Matte responded to the request by handing defendant a telephone book and allowing him to make a number of telephone calls.
Defendant first called his psychiatrist, who declined to administer the test on the basis that he was no longer a practicing physician. Defendant called approximately six other doctors, who all declined to administer the test on the basis that defendant was not one of their patients. Defendant told Matte that he could not find anyone to administer the test and Matte responded that there was nothing that Matte could do about it. Defendant quit making calls and said "forget it.” Matte told defendant that he could make an additional call if he could think of a physicián to contact and that an officer would provide transportation to and from the physician’s office in order to obtain the test.
As indicated in the dissent, Pontiac Osteopathic Hospital is located approximately a quarter mile from the police station. It was the policy of the police department to provide suspects with transportation, within a reasonable distance, to obtain a blood test. In the past, suspects have been transported to both the Pontiac Osteopathic Hospital and Pontiac General Hospital to obtain a blood test. At no time did Matte inform defendant that he could go to Pontiac Osteopathic Hospital for a blood test or that Pontiac General administers such tests. Rather, after defendant gave up on trying to find a physician, Matte locked defendant up for the evening to be bonded out in the morning.
In reaching its decision, the trial court stated:
The court further finds that Lake Orion Police Department has no procedure regarding granting any defendants their rights to a blood test, except for those that are enumerated by Officer Matte, that — and in this case, that the defendant was given a phone and given a telephone book.
The court finds that that’s unreasonable to the extent that, if somebody is arrested, they still have the right, and if they don’t know a doctor and they don’t know a place, that does not preclude — the statute does not say that precludes them from having that right. The court reads into the right as Mr. Halushka has stated, that the defendant has his choice, but the fact is if somebody doesn’t know a doctor, especially at four in the morning, or he doesn’t know a doctor to call or he doesn’t know a hospital, if he doesn’t know the area, then he doesn’t lose his right just because he doesn’t know these things. A person from out of state could come in and have the same rights.
Based upon that, the court finds that the defendant was deprived of his right to obtain evidence to defend himself and, where there is a depriving of a defendant of his right to defend himself, there’s no way that person can get a fair trial. Even if any and all evidence was used against him, he does not have the opportunity to properly defend himself and that precludes the opportunity of having a fair trial. Based upon that, the court will dismiss the drunk driving case against Mr. Craun.
MCL 257.625a(5); MSA 9.2325(1X5) provides in part:
A person who takes a chemical test administered at the request of a peace officer, as provided in this section, shall be given a reasonable opportunity to have a person of his or her own choosing administer 1 of the chemical tests described in this section within a reasonable time after his or her detention, and the results of the test shall be admissible and shall be considered with other competent evidence in determining the innocence or guilt of the defendant. [Emphasis added.]
The resolution of this case centers on the proper interpretation of the words "reasonable opportunity.” The trial court made a factual finding that defendant was not afforded a reasonable opportunity to obtain an independent blood test. We review that finding of fact to determine if it is clearly erroneous. MCR 2.613(C). We conclude that it was not.
The Legislature granted drunk driving suspects the right to obtain chemical tests independent of a police administered test. Moreover, it is not sufficient that a suspect merely be given an opportunity to obtain a test. Rather, that opportunity must be a reasonable one. We agree with the courts below that merely handing a suspect a telephone book and a telephone is insufficient. That would render the right to an independent blood test ineffective where the suspect is unaware of a physician or medical facility which would be willing to perform such a test in the middle of the night.
The dissent places great emphasis on the language in the statute that the independent test is to be performed by a person of the suspect’s own choosing. While we agree that the language says that the suspect, and not the police, decides who will administer the test, we do not read it to be as broad a limitation on the role of the police as the dissent suggests. Rather, it merely assures that the suspect makes the final selection, not the police.
We also dismiss the dissent’s concern that, had the police suggested a place where defendant could, have obtained a blood test, defendant could have argued that the test was not independent. Such problems are easily avoided by the police not. making any suggestions until after a suspect requests information about a testing facility or where, as here, a suspect indicates that he is unable to find anyone willing to administer the test.
We do not suggest that the police must become actively involved in the suspect’s search for a testing facility. Rather, we conclude that, where the police are aware of an available testing site within a reasonable distance from the station, they must share that information with a suspect in order to satisfy the reasonable opportunity standard granted in the statute.
The trial court’s conclusion that defendant was not given a reasonable opportunity to obtain an independent test was not clearly erroneous. Accordingly, it properly dismissed the alcohol-related driving charges against defendant. See People v Underwood, 153 Mich App 598; 396 NW2d 443 (1986).
Affirmed.
A. T. Davis, J., concurred. | [
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M. J. Kelly, P.J.
These cases concern an appeal by the Genesee County Prosecutor from circuit court orders disqualifying Prosecutor Robert E. Weiss and his entire staff from prosecuting certain cases because of conflict of interest, and providing for appointment of a special prosecutor, pursuant to MCL 49.160; MSA 5.758. The two sets of cases arose from discrete factual situations, but involve the same legal issue and have been consolidated in this appeal. The first set of cases arose out of a large-scale investigation into drug trafficking in the Flushing, Michigan area. Defendant Johnathan P. Doyle is charged with delivery of cocaine, contrary to MCL 33.7401(1); MSA 14.15(7401X1). Nine other drug charges are also pending against defendant Doyle in other district courts. Defendants Matthew S. Kardos and Michael Lee Reynolds are also charged with delivery of cocaine. The second set of cases concern defendants Walter Johnson, Scott James Johnson and Timothy Donaldson who are charged with assault with intent to cause great bodily harm, MCL 750.84; MSA 28.279. The people appeal by leave granted. We affirm.
i
The basis of defendants Doyle’s, Kardos’ and Reynolds’ motion for disqualification of the prosecutor for conflict of interest is the personal relationship between Doyle and Dennis Lazar, Chief Assistant Genesee County Prosecutor. Doyle and Lazar are brothers-in-law; their wives are sisters. The Flushing drug investigation, supervised by the prosecutor’s office, began in August, 1984, and implicated Doyle in September, 1984. Doyle married Lazar’s sister-in-law around Christmas, 1984.
Believing he had a plea agreement, Doyle waived preliminary examination on ten drug charges, and the cases were bound over to circuit court. After Prosecutor Weiss denied having agreed to the plea agreement, Doyle moved for remand of the cases to district court. Nine of the cases were remanded. However, Judge Harry B. McAra denied the motion to remand this case. Instead, hearings were held on the question of whether or not a plea bargain had been agreed to and the cases involving defendants Kardos and Reynolds were waived to the circuit court for the special purpose of determining whether the prosecutor’s office was disqualified for conflict of interest.
At the hearings Doyle’s original defense counsel, Terrance P. Sheehan, testified that he met with Lazar on three occasions, and thought a plea agreement had been reached in Doyle’s case. Sheehan admitted that Lazar never said "we have an agreement,” but Sheehan had the impression that they had a conditional agreement, subject to Lieutenant Peraino’s approval. Because Sheehan be lieved an agreement had been reached, he permitted an incriminating interview between Doyle and Lieutenant Peraino.
Subsequently, at Doyle’s preliminary examination, Sheehan and Lieutenant Peraino informed the assistant prosecuting attorney, Paul Jarboe, of the plea agreement. Jarboe wanted to confirm it with his superior but was unable to reach any authority there. Lieutenant Peraino suggested waiving the preliminary examinations in all ten cases and putting the plea bargain on the record in circuit court. Sheehan agreed and this was done. Soon after, Sheehan received a telephone call from Weiss who told him that they did not have a plea agreement. It was then that Sheehan moved for remand with the consequences previously outlined. Sheehan testified that Lazar told him that he could not make decisions on the Doyle case and Sheehan understood that Lazar was not involved in the Doyle case, that Lazar was speaking for Weiss and acting at Weiss’ direction. However, all of Sheehan’s discussions were with Lazar; he never spoke with Weiss or any other prosecutor.
Dennis Lazar testified that he did have discussions with Sheehan, but denied that he indicated that they had a plea agreement subject to Lieutenant Peraino’s approval. Lazar testified that he was speaking on behalf of Weiss and related the conversations with Sheehan to Weiss. The trial court asked Lazar why he talked to Sheehan if he was disqualifying himself. Lazar answered that he had removed himself from the decision-making processes, but that Weiss had given him authority to gather information and to relate it to Weiss.
Mr. Weiss, Prosecutor for Genesee County, testified that when Lazar told him that Sheehan wanted a plea bargain Weiss told him no. Weiss testified that after Doyle became Lazar’s brother-in-law, Lazar was out of the Doyle case. Lazar was still involved, however, in cases in which Doyle was a witness.
Subsequently, the trial judge denied Doyle’s motion to enforce the alleged plea bargain and that issue is not before this Court. However, the trial judge granted all defendants’ motions for disqualification of Prosecutor Weiss and his staff pursuant to MCL 49.160; MSA 5.758. In his opinion, Judge McAra stated that, while the court did not find that there had been actual fraud or impropriety on the part of the prosecutor’s office, there was the appearance of impropriety. The order for disqualification provided for appointment of a special prosecutor and for appointment of an investigator to assist the special prosecutor. The order disqualified the prosecutor’s office from prosecuting the Doyle, Reynolds and Kardos cases, and also all other cases arising out of the Flushing drug investigation, including other cases pending against Doyle.
ii
The basis for defendants Walter Johnson’s, Scott Johnson’s and Timothy Donaldson’s claim for disqualification is that the complaining witness and victim, Danny Lazar, is the brother of Dennis Lazar, Chief Assistant Prosecutor.
The charges against defendants Walter Johnson, Scott Johnson and Timothy Donaldson arose out of an altercation on November 4, 1984. Three complaints were filed. Two complaints were filed by Danny Lazar and Genesee County Police Officer Charles Abraham alleging criminal activity by the three defendants. Ruth Johnson, wife of defendant Walter Johnson, filed the third complaint, alleging that Danny Lazar assaulted her husband. The warrants were issued more than three months after the complaints were filed, and were authorized by Assistant Prosecutor John McGraw. Prosecutor Weiss testified that he was unable to establish that he was in the office on the day the warrants were issued, in which case Dennis Lazar would have acted as prosecuting attorney. Weiss testified that Dennis Lazar did not participate in this matter and that the warrant authorization was issued by Assistant Prosecutor McGraw. The trial court, Judge Donald R. Freeman, found it likely, however, that Dennis Lazar was the supervising prosecutor when McGraw issued the warrants.
Weiss also testified that, prior to the altercation, Ruth Johnson came to see him to discuss a complaint against Danny Lazar, which involved allegations of sexual impropriety. Weiss testified that Ruth Johnson wanted to proceed against Danny Lazar, but that he was not sure that she had made a formal criminal complaint. Weiss, who testified that he knew Danny, telephoned him after the meeting with Ruth and advised Danny to avoid Walter Johnson. Weiss also thought that Dennis Lazar had discussed the. case with his brother.
Judge Freeman granted defendants’ motion for disqualification of Prosecutor Weiss and his staff, and ordered a special prosecutor or the Attorney General to take over those duties.
iii
The people’s argument is that the mere appearance of impropriety alone is insufficient to support a disqualification order where there are no facts demonstrating an emotional or personal stake in the litigation which warrants recusal, and where there is no showing that either investigation was improperly conducted.
The various defendants brought these motions to disqualify the Genesee County Prosecutor and his staff pursuant to MCL 49.160; MSA 5.758 which provides in part:
(1) If the prosecuting attorney of a county is disqualified by reason of conflict of interest or is otherwise unable to attend to the duties of the office, the supreme court, the court of appeals or the circuit court for that county, upon a finding to that effect by the court, may appoint an attorney at law as a special prosecuting attorney to perform the duties of the prosecuting attorney in the respective court in any matter in which the prosecuting attorney is disqualified or until such time as the prosecuting attorney is able to serve.
(4) This section shall not apply if an assistant prosecuting attorney has been or can be appointed by the prosecuting attorney pursuant to . . . section 776.18 of the Michigan Compiled Laws, to perform the necessary duties within the constraints of that section or if an assistant prosecuting attorney has been otherwise appointed by the prosecuting attorney pursuant to law and is not disqualified from acting in place of the prosecuting attorney.
No Michigan case has stated the appropriate standard of review of a court’s decision under MCL 49.160; MSA 5.578. Cases from other states have held that disqualification of the prosecuting attorney is a matter of judicial discretion. Thus, in those states, appellate courts review that decision under an abuse of discretion standard. See Anno: Disqualification of prosecuting attorney on account of relationship with accused, 31 ALR3d 953; Young v State, 297 Md 286; 465 A2d 1149 (1983); People v Superior Court (Greer), 19 Cal 3d 255; 137 Cal Rptr 476; 561 P2d 1164 (1977). In California, ap pointment of a special prosecutor to replace a prosecutor disqualified on the basis of a conflict of interest was originally a judicially created doctrine grounded in the court’s inherent power to supervise its judicial proceedings. Greer, supra. In Michigan, however, appointment of a special prosecutor is authorized by statute. The Michigan statute authorizes the court to appoint a special prosecutor to replace a prosecuting attorney who is disqualified because of a conflict of interest or who is otherwise unable to attend to his duties "upon a finding to that effect by the court.” MCL 49.160(1); MSA 5.578(1). Therefore, the determination of the existence of a conflict of interest is a question of fact and should be reviewed under the clearly erroneous standard of MCR 2.613(C).
IV
Cases discussing disqualification of prosecutors fall into two main subject categories. The first category involves disqualification for a conflict of interest arising out of some professional, attorney-client relationship, as when the defendant is a former client of the prosecuting attorney. The prior existence of an attorney-client relationship raises typical privilege and conflict of interest questions. Cases in this category discuss whether the prosecuting attorney became privy to confidential information which he may not ethically use against the defendant and whether such information may be imputed to other members of the prosecuting attorney’s office. The vast majority of published cases seem to be of this type. See 31 ALR3d 953.
The instant cases fall into the second category, which includes situations where the prosecuting attorney has a personal interest (financial or emo tional) in the litigation, or has some personal relationship (kinship, friendship or animosity) with the accused. In Michigan, the recusal of a prosecuting attorney who has a personal interest in the case is required by the Code of Professional Responsibility. Canon 9 provides that "a lawyer should avoid even the appearance of professional impropriety.” DR 5-101 is arguably applicable:
DR 5-101. Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
Two Michigan cases discuss disqualification of the prosecuting attorney for conflict of interest due to some personal interest in the litigation. People v Cline, 44 Mich 290; 6 NW 671 (1880), held that the prosecuting attorney was disqualified because the complaining witness was his brother and because the prosecuting attorney’s firm was also a victim of the swindle allegedly perpetrated by the defendants in that case. In the second case, People v Fitzsimmons, 183 Mich 284; 149 NW 976 (1914), the defendant, a cashier at a bank, was charged with embezzlement. The prosecuting attorney had appeared on behalf of some of the bank’s creditors to object to the appointment of administrators sponsored by the defendant’s counsel. The prosecuting attorney had appeared gratuitously and was not employed as an attorney by the creditors, except in those probate proceedings. These facts were not, apparently, the basis of the Court’s decision. The Court found that the prosecuting attorney was disqualified because of his interest as a depositor of the bank:
In the instant case [defendant] was defending upon the theory that another than himself caused the shortage in the funds of the bank. The same state of facts which would sustain his conviction if shown would establish his civil liability to the bank. The prosecuting attorney was a depositor in the bank, which gave him a direct interest in its assets, one of which might be the liability of the [defendant], [Fitzsimmons, supra, p 289.]
Courts around the country recognize two policy considerations underlying the disqualification of prosecuting attorneys for a conflict of interest. The first policy served by the rule is fairness to the accused. It is universally recognized that a prosecutor’s duty is to obtain justice, not merely to convict. While the prosecutor must prosecute vigorously, he must also prosecute impartially. Greer, supra, p 266; People v Conner, 34 Cal 3d 141; 193 Cal Rptr 148; 666 P2d 5 (1983); People v Morgan, 86 Mich App 226, 227; 272 NW2d 249 (1978). In Greer, the California Supreme Court recognized that the prosecutor’s discretionary functions are not confined to pretrial matters. The prosecuting attorney, like other lawyers, has the ability to conduct the case in the manner he chooses.
A district attorney may thus prosecute vigorously, but both the accused and the public have a legitimate expectation that his zeal, as reflected in his tactics at trial, will be borne of objective and impartial consideration of each individual case. [Greer, supra, p 267.]
The Greer Court concluded:
[A] trial judge may exercise his power to disqual ify a district attorney from participating in the prosecution of a criminal charge when the judge determines that the attorney suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary function of his office. [Greer, supra, p 269.]
The second policy served by disqualification of a prosecuting attorney for conflict of interest is the preservation of public confidence in the impartiality and integrity of the criminal justice system. Greer, supra, p 268; Conner, supra, p 146; 31 ALR3d 953. American courts have consistently held that the appearance of impropriety is sufficient to justify disqualification of a prosecuting attorney. A defendant need not prove actual bad faith or unethical conduct on the part of the prosecutor and his staff. Love v Superior Court, Ill Cal App 3d 367; 168 Cal Rptr 577 (1980); 31 ALR3d 953; Ward v State, 33 Okla Crim 182; 242 P 575 (1926). It has also been argued that to require a defendant to prove actual impropriety would be too great a burden. State v Detroit Motors, 62 NJ Super 386; 163 A2d 227 (1960); 31 ALR3d 953.
v
When a court determines that a conflict of interest exists, the question then arises as to whether the circumstances require recusal of the prosecutor’s entire office or only of the particular prosecuting attorney. The general rule is that a conflict of interest involving the elected county prosecutor himself requires recusal of the prosecutor and the entire staff. Since assistant prosecutors act on behalf of the elected county prosecutor and are supervised by him, the policies of fairness to the defendant and the avoidance of an appearance of impropriety require this result. 31 ALR3d 953. When the conflict of interest involves an assistant prosecuting attorney, as in these cases at bar, recusal of the entire prosecutor’s office is not automatic. The California courts have recognized the supervisory responsibilities of the prosecuting attorney as a key factor. If the assistant prosecuting attorney concerned in the conflict of interest has supervisory authority over other attorneys in the office, or has policy-making authority, then recusal of the entire office is likely to be necessary. Chadwick v Superior Court, 106 Cal App 3d 108, 120-123; 164 Cal Rptr 864 (1980).
Here, the testimony showed that Lazar was the only assistant prosecuting attorney to speak with Doyle’s counsel about his case. While Lazar and Weiss both testified that Lazar was removed from "decision-making” in Doyle’s case, the circuit court felt Lazar’s involvement with Doyle’s counsel created the appearance of impropriety. The idea that Lazar could withdraw from all decision-making in the Doyle case, yet continue to participate in investigation and discussions concerning that case, is a fine distinction that draws a line difficult to straddle in both theory and practice. It appears that Lazar’s involvement in the Doyle case led to serious misunderstandings with Sheehan which may have prejudiced Doyle. Whether Lazar’s personal interest in the Doyle case would appear to incline him in favor of or against Doyle is irrelevant. Recusal is equally appropriate where the prosecuting attorney has a personal interest in convicting the accused, since the state’s interest is in attaining impartial justice, not merely a conviction.
We cannot say the trial court clearly erred in finding the elected prosecutor and his chief assis tant too intertwined in the chain of command to permit their staff to conduct these prosecutions. Therefore, Judge McAra’s decision disqualifying the Genesee County Prosecutor from prosecuting the drug charge against Doyle is not clearly erroneous and is affirmed. The fact that Lazar is the Chief Assistant Prosecutor and Doyle’s brother-in-law creates for Lazar a conflict of interest. There is an appearance of impropriety when Lazar acts in matters concerning Doyle. His family relationship with defendant Doyle is sufficiently incompatible with the interest of the defendant, of the state and of the administration of justice generally so as to require Lazar to withdraw from Doyle’s case. Recusal of the entire office is required because Lazar did not in fact withdraw from the Doyle case and because of Lazar’s supervisory position in the prosecutor’s office.
Whether these facts also require recusal of the prosecutor’s office in the Kardos and Reynolds cases is less clear. Defendants Kardos and Reynolds argue that Lazar’s conflict of interest in the Doyle case also taints their cases because all three arose out of the same large drug investigation. We disagree. There is no appearance of impropriety unless there are facts demonstrating an emotional or personal stake in the litigation which warrants recusal. After a careful reading of the transcript we find that Judge McAra clearly erred in concluding that, to preclude an appearance of impropriety, recusal of the prosecutor’s office as to Kardos and Reynolds was appropriate. Judge McAra did not articulate what facts he relied on in reaching this conclusion. Assistant Prosecutor Yuille testified that Doyle was not involved in the Reynolds and Kardos cases as far as he knew. The record does not show otherwise. The prosecutor may, however, in the interest of efficiency allow the special prosecutor which we deem necessary for the Doyle case to also handle the Kardos and Reynolds cases.
VI
However, Judge McAra’s order for recusal of the Genesee County Prosecutor in those cases which were not pending before the trial court, including the other nine Doyle cases in district court, is vacated. While recusal may be warranted, the trial court did not have jurisdiction over those cases. The statute, MCL 49.160; MSA 5.758, only authorizes the court to appoint a special prosecutor "to perform the duties of the prosecuting attorney in the respective court in any manner in which the prosecuting attorney is disqualified.” The trial court was without authority to order recusal for cases not before it. Likewise, although there was evidence supporting the trial court’s concern that Lieutenant Peraino’s close working relationship with the prosecutor’s office, and especially with Lazar, made it improper for Peraino to continue his involvement with these cases, there is no authority for the trial court’s order recusing an investigating police officer. MCL 49.160; MSA 5.758 concerns only prosecuting attorneys disqualified for conflict of interest. That statute does not authorize the court to appoint a special investigator to assist the special prosecutor. Thus, the trial court’s order recusing Lieutenant Peraino is without legal authority and is vacated by this Court.
VII
As regards the disqualification of the prosecutor’s office as to the second set of cases involving defendants Johnson, Johnson and Donaldson, the facts of these cases resemble the facts in People v Cline, supra, in which the Supreme Court held that the prosecuting attorney was disqualified because the complaining witness was his brother and because the prosecuting attorney’s firm was also a victim of the swindle allegedly perpetrated by defendants. Chief Assistant Lazar’s relationship, that of brother, to the complaining witness Danny Lazar creates a conflict of interest for Lazar in regards to these cases. While Prosecutor Weiss testified that Lazar did not have any involvement with these cases, the testimony established that Lazar was acting prosecutor when the arrest warrants were issued. Recusal is therefore required and Chief Assistant Lazar’s supervisory position in the prosecutor’s office requires recusal of the entire staff.
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Per Curiam.
On April 25, 1985, the defendants, Robin Jones and Trinados Green, were charged with attempting to obtain money over $100 by false pretenses, MCL 750.92; MSA 28.287; MCL 750.218; MSA 28.415. A preliminary examination was conducted for both defendants on May 13, 1985, in the Forty-Sixth District Court. The prosecutor moved to amend the complaint to charge a completed offense of obtaining money over $100 by false pretenses, MCL 750.218; MSA 28.415, and both defendants were bound over to the Oakland Circuit Court on the amended charge of obtaining money over $100 by false pretenses.
On September 15, 1985, defendant Jones filed a pretrial motion for change of venue to Wayne County, arguing that all the criminal acts occurred there. The trial judge granted defendant’s motion and dismissed the charge on the basis of improper venue. Thereafter, the prosecutor requested a ruling from the trial court regarding venue in the Trinados Green case. Again, the trial judge dismissed the charge on the basis of improper venue. The sole issue on appeal is whether the lower court erred in dismissing on the basis of improper venue. We reverse and remand for trial in Oakland Circuit Court.
Testimony at the preliminary examination revealed that an officer of the Michigan State Police Auto Theft Task Force, Trooper Gardner, had a telephone conversation with defendant Jones and set up a meeting in a McDonald’s parking lot in the City of Southfield (Oakland County) for the purpose of purchasing a vehicle as a part of an insurance fraud scheme. At the time of the conversation, Gardner was in Livonia (Wayne County) and defendant Jones was in the City of Detroit (Wayne County). Gardner testified that he and other surveillance officers arrived at the agreed location and met with defendants Jones and Green. Gardner, representing himself as an individual who had trucks which could haul vehicles out of state, purchased defendant Jones’ car for $216. Defendants Jones and Green then agreed to wait for two to three days before reporting the car stolen. Gardner testified that the car was subsequently reported stolen to the police in Dearborn (Wayne County). Another witness for the prosecution, a fraud investigator for the State Farm Insurance Company, testified that defendant Jones reported her car stolen to the insurance company’s Livonia office on March 25, 1985. A check was subsequently issued to defendant Jones for $3,336, which she then endorsed and cashed.
MCL 762.8; MSA 28.851 provides:
Whenever a felony consists or is the culmination of 2 or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any 1 of said acts was committed.
Defendants’ scheme to defraud the insurance company began in Oakland County where the car was sold to Gardner and ended in Wayne County where defendant Jones reported the car stolen to the police and the insurance company, which subsequently issued the check.
Defendants argue that the acts necessary to satisfy the elements of the crime of false pretenses all occurred in Wayne County making MCL 762.8; MSA 28.851 inapplicable. However, MCL 762.8; MSA 28.851 is concerned with the "acts” which culminate in a felony rather than the essential elements of the felony. Since the defendants’ meeting and subsequent sale of the car in Oakland County was the beginning or first act which culminated in the crime of false pretenses over $100, MCL 762.8; MSA 28.851 applies and venue is proper in Oakland County. See People v Lee, 334 Mich 217, 226; 54 NW2d 305 (1952); People v De Cair, 23 Mich App 438; 178 NW2d 830 (1970); People v Dansby, 48 Mich App 185, 190; 210 NW2d 392 (1973).
Reversed and remanded. | [
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D. L. Sullivan, J.
Defendant appeals the trial court’s award of expert witness fees pursuant to § 16 of the Uniform Condemnation Procedures Act, MCL 213.66; MSA 8.265(16).
Plaintiff, City of Detroit, condemned property belonging to defendant within the Central Industrial Park Project (Poletown). Defendant employed two expert witnesses, Gerald Anderson and William Walsh, to give testimony as to the value of its property. Subsequent to a jury award of $1,400,000, defendant moved for compensation for its experts for services rendered in the course of litigation. Specifically, defendant requested $42,875 for Anderson’s services and $49,175 for Walsh’s services.
The trial court heard testimony that the flat fee for an appraisal was $25,000 each for Anderson and Walsh. This appraisal included an examination of "comparables” and ultimate identification of the "least costly desirable substitute.” The remainder of the experts’ fees were incurred at a rate of $100 per hour. Defendant submitted itemized billing summaries of Anderson and Walsh. These summaries included hourly figures for meetings, conferences with attorneys, "review” of the experts’ files and appraisal reports, preparation for trial, and appearance at court. The testimony of Walsh and Anderson indicated that the time billed under each of these items included continual review of the appraisal reports, reviewing comparables learned of after submission of their appraisals, discussion of the "legal perimeters” of their testimony, educating the attorneys about the standards used in their appraisals, trial strategy sessions, critical assessment of the city’s comparables, time present in court, and time spent testifying.
The trial court awarded the $25,000 flat fee to each expert for his appraisal and awarded $4,000 to each expert, $2,000 for review and preparation for trial, and $2,000 for court time. The court’s denial of additional amounts can be summed up by the following from the court’s written opinion: "This Court does not believe that the appraisers are entitled to be compensated as consultants, [and] the Court does not believe that all of the review time was necessary.” Defendant appeals, attacking the trial court’s award on two fronts: (1) defendant claims that MCL 213.66; MSA 8.265(16) permits appraisers to be compensated as consultants; and (2) defendant claims that, assuming arguendo appraisers are not properly compensated as consultants, the trial court’s ultimate award evidences an abuse of discretion. We address those claims in order.
1980 PA 87, § 16; MCL 213.66; MSA 8.265(16), provides in relevant part:
(1) A witness, either ordinary or expert, in a proceeding under this act shall receive from the agency the reasonable fees and compensation provided by law for similar services in ordinary civil actions in circuit court, including the reasonable expenses for preparation and trial.
(4) Expert witness fees provided for in subsection (1) shall be allowed with respect to an expert whose services were reasonably necessary to allow the owner to prepare for trial. The agency’s liability for expert witness fees shall not be diminished or affected by the failure of the owner to call an expert as a witness if the failure is caused by settlement or other disposition of the case or issue with which the expert is concerned.
Defendant contends that subsection (4) permits compensation for all experts’ "services . . . reasonably necessary to allow the owner to prepare for trial.” We disagree.
We do not read the words "services . . . reasonably necessary to allow the owner to prepare for trial” in subsection (4) as defendant does, i.e., as modifying "expert witness fees.” Rather, that language describes only those experts whose fees are recoverable, i.e., those "whose services were reasonably necessary to allow the owner to prepare for trial.” We believe that our reading is buttressed by the second sentence of subsection (4) which provides that an agency’s liability "shall not be diminished or affected by the failure ... to call an expert as a witness if the failure is caused by settlement or other disposition.” The expert wit ness fees recommended for an expert whose services were reasonably necessary to allow the owner to prepare for trial are those fees "provided for in subsection (1).”
Subsection (1) of § 16 provides that an expert witness "shall receive . . . the reasonable fees and compensation provided by law for similar services in ordinary civil actions in circuit court, including the reasonable expenses for preparation and trial.” The "fees and compensation provided by law for similar services in ordinary civil actions in circuit court” refers to the statutory provision of MCL 600.2164; MSA 27 A.2164. See Security Life Ins Co v Schwartz, 221 Mich 496; 191 NW 216 (1922); City of Holland v Green, 25 Mich App 565, 571, n 1; 181 NW2d 821 (1970). That statute, § 2164 of the Revised Judicature Act provides:
(1) No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum, which sum may be taxed as a part of the taxable costs in the case. Any such witness who shall directly or indirectly receive a larger amount than such award, and any person who shall pay such witness a larger sum than such award, shall be guilty of contempt of court, and on conviction thereof be punished accordingly.
As we read the statutes, the only difference between amounts properly paid experts under § 2164 of the rja and § 6 of the Uniform Condemnation Procedures Act is that the award of expert witness fees for trial preparation time is discretionary under § 2164, see Gunderson v Village of Bingham Farms, 1 Mich App 647; 137 NW2d 763 (1965), while mandatory under § 16.
We believe that, read in the conjunctive, experts are properly compensated under MCL 213.66; MSA 8.265(16) for court time and the time required to prepare for their testimony as experts, i.e., as individuals whose specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. MRE 702. See State Highway Comm’r v Rowe, 372 Mich 341, 343; 126 NW2d 702 (1964). Therefore, we do not regard conferences with counsel, for purposes such as educating counsel about expert appraisals, strategy sessions, and critical assessment of the opposing party’s position to be properly compensable as expert witness fees. In this regard, we agree with the following observation of the trial court:
This Court does not believe that when an appraiser renders services that go beyond and without the scope of the type of services that would normally be believed as those to be rendered by a persion [sic] in his position or profession, that such services should be taxable costs. There is nothing illegal in the owner [sic] hiring a personal advocate, but the statute made provision for the compensation to be paid to an attorney. It does not provide for fees to be paid a consultant nor does it provide that when such payment is made that [sic] the expenditure may be taxed as costs.
This Court believes that the appraiser must never leave the witness stand as an expert witness and become a litigant, an advocate or an attorney in fact. If the appraiser is allowed to do that than [sic] the entire value of the appraisal system is destroyed. The Court cannot believe that any of the bar committees or the members of the legislature ever envisioned the appraiser becoming a mercenary for either the condemnee or the condemnor.
We next address defendant’s claim that, assum ing arguendo the trial court properly construed the statute, its award for trial preparation was grossly inadequate and represents an abuse of discretion. We find this claim to be without merit.
The trial court awarded defendant’s experts the full fee for their appraisals and twenty extra hours, at $100 per hour, for further trial preparation. We agree with the trial court that the tremendous time and effort used to prepare the appraisal was significant preparation and permitted defendant’s experts to well acquaint themselves with the subject matter of this suit. Other than the abridged billing summaries on the experts’ time sheets, the record provides few specifics of how the additional hours tabulated were spent by the experts. The burden of proof rests upon the one who has the affirmative of an issue. 11 Michigan Law & Practice, Evidence, § 21, p 159. From the record before us, we cannot say that the trial court abused its discretion in finding that the weight of constant review thereafter was not necessary to trial testimony, but was either repetitious or done with an eye toward assisting the attorneys in their legal theories and presentation of defendant’s case.
Finally, defendant contends that the trial court erred when it excluded evidence of fees paid by the City of Detroit to its experts for other Poletown parcels. Denial or admission of evidence on the ground that it would lead to confusion of issues is within the discretion of the trial court. MRE 403. Because all amounts so paid would not necessarily be compensable if the city were the property owner whose property was being condemned, we find no abuse of discretion.
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Per Curiam.
The issue presented in this case is whether defendant University of Michigan Hospital is immune from tort liability under the doctrine of governmental immunity announced in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). On August 7, 1985, the Michigan Court of Claims ruled in favor of immunity and granted summary disposition for defendant pursuant to MCR 2.116(C)(8). Appellate oral argument was conducted in June of 1986. On October 3, 1986, the Michigan Supreme Court released its decision in Hyde v University of Michigan Bd of Regents, 426 Mich 223; 393 NW2d 847 (1986), directly addressing the issue presented here. On the basis of that opinion, we reverse the lower court’s order of summary disposition.
In Hyde v University of Michigan, a majority of justices of the Supreme Court decided the extent to which its opinion in Ross should be applied retroactively. 426 Mich 241, 246. Since the instant case was pending in the trial court when the decision in Ross was issued, the definition of governmental immunity announced therein applies only if defendant had properly raised the defense of governmental immunity at that time. We have thoroughly reviewed the trial court record. Defendant in this case failed to assert the defense of governmental immunity until April 11, 1985, when it filed a motion for summary disposition based on the Ross decision. Thus, in accordance with the Supreme Court’s opinion in Hyde, supra, the definition of governmental immunity announced in Ross does not apply to the defendant’s activities in this case. Under former case law, defendant is not entitled to governmental immunity. Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978).
While the result reached in this case may initially seem a technical fluke, Justice Cavanagh noted in Hyde v University of Michigan, that the Legislature has enacted 1986 PA 175, effective July 1, 1986, which specifically abrogates governmental immunity "with respect to the ownership or operation of a hospital or a county medical care facility.” MCL 691.1407; MSA 3.996(107), as amended. Thus, the result here is consistent with case law prior to January 22, 1985, and statutory law after July 1, 1986, and accurately reflects the intent of the Legislature as now stated.
Reversed and remanded. | [
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Per Curiam.
Defendant was convicted by a jury of first-degree criminal sexual conduct, armed robbery and possession of a firearm during the commission of a felony. MCL 750.520b; MSA 28.788(2); MCL 750.529; MSA 28.797; MCL 750.227b; MSA 28.424(2). He was sentenced to life imprisonment for the criminal sexual conduct conviction, fifty to seventy-five years imprisonment for the armed robbery conviction and two years imprisonment for the felony-firearm conviction to run consecutively to the other two sentences. Defendant appeals as of right.
On November 15, 1984, at approximately noon, the complainant, was approached by defendant at the Leverette’s Car Wash located at Dexter and Glendale in the City of Detroit as she dumped trash from her car. Defendant approached the driver’s side door of complainant’s car and put a gun to her head, reached into the car and searched her pocket for money. Next he demanded a kiss, stating that he would shoot otherwise, and then he opened the car door. Complainant testified that there was no one else around at the time. Defendant then instructed complainant to move over and defendant proceeded to get into the car. Once inside, defendant unzipped his pants and forced complainant to perform oral sex. Thereafter, defendant ordered complainant out of her car and drove away. Although complainant hinted to her mother that she was sexually assaulted, she did not inform the police of the sexual incident at that time. Complainant testified that she did not do so because she was embarrassed.
On November 25, 1984, defendant was apprehended while in possession of complainant’s car.
While being transported to the police station for a line-up on November 25, 1984, complainant alleged for the first time that defendant had sexually attacked her. The allegation came in response to questioning by Sergeant Edward Ryal. Complainant testified that she was willing to give details of the sexual act to Sergeant Ryal at that time because she had calmed down since the incident.
On these facts, defendant was convicted of first-degree criminal sexual conduct, armed robbery and felony-firearm. On appeal, defendant contends that the trial court abused its discretion by failing to suppress evidence of defendant’s prior second-degree murder conviction. He argues that his previous conviction is not an offense which bears directly on credibility. Although it was punishable by imprisonment in excess of one year, it did not involve theft, dishonesty, or false statement. Defendant alleges that the prejudicial effect of admitting the previous criminal record in relation to the present charges far outweighs any probative value gained from admitting the conviction, because he had no alternative means of defending himself other than with his own testimony.
The relevant Michigan rule of evidence for impeachment by evidence of prior convictions is MRE 609, which provides that a witness can be impeached by evidence of prior convictions if the crimes were punishable by death or imprisonment in excess of one year or if the crime involved theft, dishonesty or false statement. In addition, the court is instructed by the rule to determine that the probative value of the evidence outweighs its prejudicial effect.
A decision to admit evidence of prior convictions rests in the sound discretion of the trial judge. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). Review of a trial court’s determination to admit evidence of prior convictions involves two considerations: (1) whether the trial judge recognizes his or her discretion to decline to admit evidence of the convictions; and (2) whether the trial judge’s decision is so palpably and grossly violative of fact and logic as to amount to an abuse of discretion. People v Carpenter, 120 Mich App 574, 580; 327 NW2d 523 (1982).
The factors which the trial judge must weigh in determining whether to suppress evidence of prior convictions were articulated by this Court in People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978), as follows:
(1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a "bad man” or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?).
At a pretrial hearing on defendant’s motion to suppress his prior conviction, the trial court held that the case involved a credibility contest between the victim and defendant and that suppressing the evidence of the conviction would leave the jury with a false impression that defendant was of good character. The court expressly found that the probative value of the evidence far outweighed any prejudicial value.
The trial judge also recognized the need to consider the effect on the decisional process should defendant elect not to take the stand for fear of impeachment. Defendant had filed a notice of alibi and listed an alibi witness, thus his defense could have been presented through this witness, though we note that defendant elected not to pursue this defense at trial.
Defendant concedes that the conviction for second-degree murder is not for substantially the same conduct as that involved in the present charges. Thus, there was minimal danger that the jury would infer that because defendant was previously convicted he most likely committed these crimes.
We find that the record in this case adequately reflects that the trial judge recognized his discretion and that his decision was not so palpably and grossly violative of fact and logic as to amount to an abuse of that discretion. Many panels of this Court have recognized the importance of allowing the jury to hear evidence of any prior convictions of a defendant or a complaining witness where the case turns on which party the jury will believe. People v Lesperance, 147 Mich App 379, 388; 382 NW2d 788 (1985); People v Monasterski, 105 Mich App 645, 655; 307 NW2d 394 (1981), lv den 411 Mich 1017 (1981); People v Jones, 98 Mich App 421, 427-429; 296 NW2d 268 (1980); People v Allen, 71 Mich App 465; 248 NW2d 588 (1976); People v Kelly, 66 Mich App 634; 239 NW2d 691 (1976).
Defendant argues that the instant case does not present a true one-to-one credibility contest, as defendant was apprehended by the police in the complainant’s car. However, we find that the case at bar does present a credibility contest with respect to the criminal sexual conduct which complainant alleged took place and which defendant apparently denied.
Affirmed. | [
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Per Curiam.
Defendant Vivian Anderson, as personal representative of the estate of Joann Anderson and as next friend of Anthony Cyril Anderson, appeals as of right from an order of summary disposition entered April 15, 1986. The trial court granted plaintiff, Transamerica Insurance Company, a judgment declaring that it had no duty to. defend defendants Cheryl Howard, Robert L. Howard and Evelyn Howard in an action brought against them by defendant Anderson. We affirm.
Plaintiff had issued a homeowner’s insurance policy to Robert and Evelyn Howard. Their daughter, Cheryl Howard, resided with them when, on June 30, 1979, while the policy was in effect, she stabbed to death Joann Anderson. Cheryl Howard subsequently pled guilty to voluntary manslaughter, MCL 750.321; MSA 28.553, and her conviction has since been affirmed by this Court.
Defendant Anderson, in her representative capacity, filed an action for civil damages against the Howards and several others, alleging in the alternative that Cheryl Howard either intentionally (with malice and intent to kill or cause great bodily harm) or negligently caused the death of Joann Anderson. The homeowner’s policy issued by Transamerica to the Howards provided for comprehensive personal liability coverage, limited by the standard exclusion for personal liability arising out of "injury, sickness, disease, death or destruction caused intentionally by or at the direction of the insured.” In response to the underlying lawsuit, plaintiff filed this declaratory action, which only Vivian Anderson answered. The trial court granted summary disposition and defendant Anderson now appeals as of right.
The sole issue is whether the trial court erred in relying upon Cheryl Howard’s voluntary manslaughter conviction as a basis for concluding that there was no material issue of fact in dispute as to whether Joann Anderson’s injuries and death had been intentionally caused by the insured. Defendant argues that her complaint in the underlying action states an alternative theory of negligence, thus placing in issue the nature of Cheryl Howard’s conduct.
In Linebaugh v Berdish, 144 Mich App 750, 755; 376 NW2d 400 (1985), we interpreted identical exclusionary language and held that such a provision "requires both an intentional act and an intentionally caused injury,” before the insurer is relieved of its duty to defend or provide coverage. Where the injury or resulting death is the natural, anticipated and expected result of an intentional act, courts may presume that both act and result are intended and an exclusionary clause such as contained in the instant policy applies. 144 Mich App 755-758. See also Kermans v Pendleton, 62 Mich App 576; 233 NW2d 658 (1975), and Wright v White Birch Park, Inc, 118 Mich App 639, 645; 325 NW2d 524 (1982).
Defendant argues that a conviction for voluntary manslaughter may be obtained where the conduct causing the death of another is negligent and careless rather than intentional. We disagree. An essential element of the crime of voluntary manslaughter is the intent to kill or the intent to do serious bodily harm. People v Townes, 391 Mich 578, 589; 218 NW2d 136 (1974); People v Delaughter, 124 Mich App 356, 360; 335 NW2d 37 (1983). Since Cheryl Howard must have intended the injury (death) in order to have been convicted of voluntary manslaughter, we can only conclude that her act of stabbing the deceased was intentional as well. In this context, we find no real distinction between act and injury. See Kermans, supra, and Farm Bureau Mutual Ins Co v Rademacher, 135 Mich App 200; 351 NW2d 914 (1984).
Defendant also argues that the trial court may not, for purposes of this civil action, consider Cheryl Howard’s criminal conviction obtained by plea rather than by trial. Defendant relies on Wheelock v Eyl, 393 Mich 74; 223 NW2d 276 (1974), which involved use of evidence of a criminal conviction to prove liability for damages in a civil action. As has recently been explained by another panel of this Court, the rule announced in Wheelock does not apply in a proceeding to determine insurance coverage. See Yother v McCrimmon, 147 Mich App 130, 134; 383 NW2d 126 (1985). While evidence of Cheryl Howard’s conviction may not be used in the underlying action to establish her civil liability, it may be used in this declaratory action to determine whether plaintiff has a duty to defend her in the underlying action. The fact that Cheryl Howard’s conviction was obtained by plea rather than by trial does not change this ruling.
Finally, defendant argues that the trial court improperly relied upon the doctrine of collateral estoppel in concluding that the criminal proceedings decided the issue of Cheryl Howard’s intent for purposes of this declaratory action. However, we do not believe that the trial court applied the principle of collateral estoppel in granting plaintiffs motion for summary disposition. Instead, the court simply looked to the underlying complaint to determine whether there was a duty to defend plaintiffs insured. The critical issue was whether there was any factual dispute regarding Cheryl Howard’s intent in causing the death of Joann Anderson. Evidence of her conviction for voluntary manslaughter established the intentional nature of her conduct. On the other hand, defendant Anderson provided no facts from which a reasonable trier of fact might infer that the death was negligently caused. The court concluded that there was no material issue of fact in dispute regarding Cheryl Howard’s intent and granted summary disposition on that basis.
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D. R. Carnovale, J.
Defendant Thomas A. War- mus appeals the trial judge’s entry of a deficiency judgment in favor of plaintiff Cessna Finance Corporation, the assignee of a promissory note and installment sales contract between Warmus and third-party defendant Cessna Aircraft Company.
Warmus purchased an airplane from Cessna Aircraft. Warmus executed an installment sales contract and promissory note. The sales contract named Cessna Finance as assignee. After allegedly encountering mechanical difficulties with the plane, Warmus ceased payment on the installment contract.
Assignee Cessna Finance sued Warmus, claiming damages from Warmus’ default in making payments due under the installment contract. Warmus defended on the ground that the sole consideration for execution of the installment contract failed. Warmus also counterclaimed against Cessna Finance for breach of warranty and sued Cessna Aircraft for breach of warranty.
Following discovery, Warmus moved for partial summary disposition. Specifically, Warmus requested a ruling that Cessna Finance was not a holder in due course of the promissory note and installment sales contract it took by assignment from Cessna Aircraft. To support his motion, War-mus submitted: (1) Cessna Finance’s admissions that it drafted the installment sales contract form used by Cessna Aircraft in defendant’s purchase transaction and that its own name was preprinted thereon under "assignments”; (2) Cessna Finance’s admission that it drafted the promissory note form that was used by Cessna Aircraft; (3) Cessna Finance’s admission that it performed a credit check on defendant before he purchased the airplane from Cessna Aircraft; (4) the deposition testimony of Cessna Finance’s administrative manager, David Carl Peaden, that more than fifty percent of Cessna Finance’s income derives from the sale of aircraft manufactured by Cessna Aircraft; (5) interrogatory answers that five persons from Cessna Finance’s seven-member board were on Cessna Aircraft’s board at the time Warmus executed the contract, three of whom were corporate officers of Cessna Aircraft.
Cessna Finance replied with its own motion for partial summary disposition predicated upon a waiver of defenses clause which provided for assignment of the contract and stated "when so assigned the contract shall be free from any claims whatsoever which buyer might have against seller.”
The trial court denied Warmus’ motion without prejudice, and granted summary disposition to Cessna Finance, relying on the above-quoted waiver of defenses clause in the installment sales contract. Subsequently, the trial court entered judgment for Cessna Finance for the deficiency after the repossession and sale of the aircraft. Defendant appeals from that judgment as of right.
On appeal, Warmus contends he may assert the defense of failure of consideration against Cessna Finance because Warmus is a party with whom the holder, Cessna Finance, has dealt. To avoid Cessna Finance’s argument that only Cessna Aircraft owed a duty to Warmus under the installment sales contract, Warmus urges this Court to adopt the "close-connections” or "close-connectedness” doctrine. Under that doctrine, if the assignee financing company is closely connected with the sales transaction, it cannot claim that it is a holder in due course. Ramadan v Equico Lessors, Inc, 448 So 2d 60, 61 (Fla App, 1984).
The trial court rejected Warmus’ reliance on the close-connections doctrine, reasoning that the majority of states which have adopted the doctrine apply it only to consumer transactions. The court further relied on MCL 445.865(d); MSA 19.416(115)(d), which provides that holders of retail installment contracts are subject to all claims and defenses of a buyer of consumer goods arising out of the retail transaction, notwithstanding any other provision of law. By negative implication, the court reasoned that the Legislature intended no similar protection for persons such as Warmus, who enter into business transactions.
We believe that the trial judge has erred in granting Cessna Finance’s motion for summary disposition because a question of fact existed as to whether Cessna Finance was a holder in due course.
MCL 440.9206; MSA 19.9206 provides:
Subject to any statute or decision which establishes a different rule for buyers or lessees of consumer goods, an agreement by a buyer or lessee that he will not assert against an assignee any claim or defense which he may have against the seller or lessor is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under the article on commercial paper (article 3). A buyer who as part of one transaction signs both a negotiable instrument and a security agreement makes such an agreement.
Pursuant to the above statute, an assignee may rely on an agreement precluding an assertion of certain defenses against an assignee only if the assignee is a holder in due course.
A holder in due course of an instrument is one who takes the instrument (1) for value, (2) in good faith, and (3) without notice that it is overdue or has been dishonored, or of any defenses or claims to it. MCL 440.3302; MSA 19.3302. Holder-in-due-course status operates to insulate the holder from certain defenses to the instrument of any party with whom the holder has not dealt. However, a holder is subject to all defenses of a party with whom the holder has dealt. MCL 440.3305; MSA 19.3305.
When ruling on a motion for summary disposition with regard to holder-in-due-course status, the trial court must determine if there exist issues of material fact on the question of good faith and on the question of whether the holder took the instrument without notice. Good faith and notice are issues for the trier of fact under conflicting evidence. However tenuous a nonmoving party’s evidence might be, the design of a motion for summary disposition is not to permit the court to decide issues of fact, but, rather, to determine whether there is an issue of fact to be determined. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973).
We believe issues of material fact remain in the instant case, and thus that the question of good faith and notice should properly be submitted to the trier of fact. Evidence exists that Cessna Finance’s name, as assignee, was on the preprinted form at the time of the execution of the lease agreement. Evidence exists that Cessna Finance made an independent check of Warmus’ credit. Evidence exists that management of Cessna Finance and Cessna Aircraft was related by common members of their boards of directors and corporate officers.
We find that because this evidence creates issues of material fact with regard to Cessna Finance’s good faith as well as to its notice of defenses to the transaction on the part of Warmus, the trial judge erred in granting Cessna Finance’s motion for summary disposition.
Under our disposition, it is unnecessary to adopt the close-connectedness doctrine. We believe that the doctrine is only a substitute for a proper analysis under existing law. Stated otherwise, it is unnecessary to adopt the doctrine when the issue can be properly addressed under existing law. To the extent that the factors relied on by other courts as indicative of close-connectedness are within the totality of the circumstances of a particular case, see, e.g., White & Summers, Uniform Commercial Code (2d ed), § 14-8, the parties may rely on them to establish that an assignee is not a holder in due course.
Reversed and remanded. | [
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Black, J.
The plaintiff realty broker, declaring in Detroit common pleas, says that he timely obtained a husband-and-wife purchaser who was ready, willing and able to acquire defendants’ premises as listed with him for sale; that on account thereof he has earned a commission owing him by defendants in the sum of $1,425, and that defendants persist in refusing to pay.
It was shown in evidence that defendants’ home in Detroit was duly listed — in writing — with plaintiff for sale. The instrument materially provided:
“If a purchaser is obtained for said property by anyone, including the undersigned, during the life of this contract, at the price and terms above named, or upon any other price, terms or exchange to which we consent; or if said property is sold within 3 months from the termination hereof to or through any person with whom you or another member have had negotiations, we agree to pay you or the member of the United Northwestern Realty Association who procures a purchaser therefor, 5% of the selling price, as commission for services rendered.”
Within the period of listing plaintiff presented to defendants a written offer to purchase the home,, signed by prospective purchasers Malcolm M. and Margaret Neimeyer. The offer was promptly accepted by defendants, in writing. The offer stipulated :
Paragraph 2. “Payment of purchase money is to be made in cash or certified check. Purchaser agrees that if he is to finance this transaction by obtaining a mortgage, he will apply for at his own expense within 5 days from the acceptance of this offer. Purchaser to pay cash to new mortgage of $15,000.”
Paragraph 7. “However, if sale is to be consummated in accordance with paragraph 2, then the closing shall be governed by the time required for obtaining a mortgage.”
Paragraph 11. “The closing of this deal shall take place at the office of mortgage company * * * This purchase subject to buyer’s sale of present home.”
The deal fell through. Plaintiff, relying particularly on testimony of Mr. Neimeyer, insisted below and insists here that the reason for such bootless result was defendants’ subsequent demand for $5,000 more than the accepted offer called for in the way of purchase consideration. Defendants, supporting their claim with testimony to such effect,, insisted below and now insist that the Neimeyerswere never able to purchase according to the accepted offer and that they, defendants, following lapse of a reasonable time for completion of the agreed purchase, justifiably rescinded their said acceptance.
The issue so framed was tried to the court (in common pleas) and resulted in a judgment for plaintiff in the declared amount. Defendants appealed to the Wayne circuit. There the judgment of' common pleas was affirmed. Defendants review and present the decisive question as follows (Stated Question No 1):
“Did the lower court (circuit court) err in affirming the judgment of the common pleas court which found that the plaintiff, the broker, furnished a buyer, ready, willing and able to perform so as to entitle him to a commission?”
We are unable to find on review of the appendices and briefs that appellants have brought forth a legal question of substance. We do find that the declared and triable issue presented below and in turn here is one of fact only. Evidence of substance and worth was presented in support of an affirmative as well as negative answer to the question which is common to these cases: Did the broker timely obtain and provide a buyer who was ready, willing and able to acquire as agreed? The trier of facts resolved that question in favor of the plaintiff broker and we are unable to say that his judgment is contrary to the clear preponderance of the evidence. See Court Rule No 77 (1945) and Schneider v. Pomerville, 348 Mich 49.
Plaintiff’s right to recover, the findings and judgment in common pleas considered, is supported by Beatty v. Goodrich, 224 Mich 538 (followed in Advance Beatty Co. v. Spanos, 348 Mich 464). The circuit court in these circumstances could do naught but affirm (Freedman v. Palmer Park Theater Co., 345 Mich 657; Fruchter v. Martin, 350 Mich 12; Book Furniture Co. v. Chance, 352 Mich 521). We must do likewise.
Affirmed, with costs to plaintiff.
Dethmers, C. J., and Carr, Kelly, Smith, Edwards, Voelker, and Kavanagh, JJ., concurred.
As added September 22, 1949. 326 Mieh lvi.—Reporter. | [
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Edwards, J.
This case represents another in a series of suits brought about as a result of the ill-fated effort of Local 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada to acquire a new home. We have recently remanded for a hearing (Mathews v. United Association, 351 Mich 293) a bill of complaint filed on the part of 9 Local Union members seeking to cancel Local Union suspensions and/or fines of $1,425 levied against each of them partly because they' were alleged to have started still another suit — this one for accounting of funds claimed to have been accumulated and disbursed by the Building Association.
In the instant action, plaintiff-appellant Duffy, a Local Union member, seeks to restrain the officers of the Local Union from making disbursements of certain Local Union funds. The chancellor below heard and granted a motion to dismiss the bill of complaint.
On appeal in such a situation, we accept as true all well-pleaded allegations in the bill. Mathews v. United Association, supra; Cortez v. Ford Motor Company, 349 Mich 108. These include:
That plaintiff is a member in good standing of Local 636, and that defendants are the officers of same and that Local 636 is a voluntary labor association having as members pipe fitting and steam fitting workers in the heating and air-conditioning industries in the Detroit metropolitan area.
The crucial allegations then follow, and we set them forth in full •
“5. More specifically plaintiff is informed and believes and alleges the facts to he:
“(a) That on or about January 16, 1956, a certain action was brought in the Wavne county circuit court, in chancery, against Jack Barton, Tim McCarthy and Jack McGuire, individually and as officers, directors and trustees of Pipe Fitters Local 636, Building Association, Inc., a Michigan nonprofit corporation, by divers persons seeking an accounting of their activities as said officers and directors of said corporation; that their activities as such officers and directors was not within the scope of anv employment or authority of Jack Barton, Tim McCarthy and Jack McGuire, as officers, servants, agents or employees of Local 636, hut, notwithstanding this, Local 636 funds in the total sum of $7,000 were used, transferred and conveyed to hire legal counsel and for other expenses in connection with the defense of said action in behalf of Jack Barton, Tim McCarthy and Jack McGuire.
“(b) Commencing in the summer of 1952, and during the course of the next year or two, certain interest-bearing certificates of indebtedness were issued by Local 636, Building Association, Inc., a Michigan nonprofit corporation, in the total amount of approximately $27,000; said certificates of indebtedness were purchased as an investment by divers persons; further that said certificates of indebtedness were not the obligation of, the proceeds therefrom did not inure to the use or benefit of, and were not sold on the credit of said Local 636; notwithstanding the foregoing plaintiff is informed and believes and alleges the facts to be that the defendants herein have been, and are, using, transferring, conveying and dividing the funds belonging to Local 636 to and among the investors in said certificates of indebtedness, and are using, transferring and conveying the funds of Local 636 for the purpose of retiring said certificates of indebtedness and paying interest accrued thereon.
“6. Plaintiff is informed and believes and alleges the facts to be that the use, division, transfer and conveyance of Local 636 funds, as aforesaid, has been and is being purportedly carried on pursuant to certain motions and resolutions passed at the regular membership meetings of said Local 636 held on divers dates which are unknown to your plaintiff but well known to your defendants.
“7. Plaintiff is informed and believes and alleges the facts to be that said motions and resolutions passed at regular membership meetings were wholly ineffectual to authorize or permit defendants herein to use, divide, transfer or convey Local 636 funds as aforesaid, as defendants herein well knew and well know for the following reasons:
“(a) Because such action is forbidden by the constitution of the United Association and the bylaws of Local 636, as more fully set forth above;
“ (b) Because said action is not part of the regular business of the Local Union and should have been made the subject of a special meeting, or meetings, with special notice, or notices, to all members of Local 636;
“(c) Because there was no affirmative vote by the entire membership of said Local 636 authorizing such action, even if the entire membership of said Local 636 should be deemed to have the power to authorize such action under the constitution of the United Association.”
Plaintiff-appellant’s basic contention is that the actions of the Local Union to which he objects were violations of the Local bylaws and the Union constitutions. In paragraph 4 of the bill of complaint, specific reference is made to section 150 (b) and (e) of the constitution of the Association, and to article 22, §§ 5 and 6, of the constitution of Local 636. These documents [, along with many others referring'to this controversy,] we find quoted* in the appendix attached to plaintiff’s bill of complaint and made a part thereof by reference.
The simple answer to our current problem is that, accepting all facts as stated by plaintiff, we can find no provision of the constitution of the Association or the Local constitution and bylaws which said actions can be held to have violated.
As to section 150 (b) and (e) of the constitution of the Association, this section is entitled Restrictions on Local Unions Withdrawing or Disaffiliating, and its entire content deals with restrictions upon disposition of Local Union funds or property on the happening of such a contingency. No withdrawal or disaffiliation is alleged in the bill of complaint, and the documents in the appendix make clear none is taking place. The section is plainly inapplicable to the actions currently complained of. Nor do we find any other which lends weight to plaintiff’s claim of constitutional violation.
As to violation of the Local constitution and bylaws, plaintiff asserts the actions complained of “should have been made the subject of a special meeting, or meetings.” Article 22 of the constitution-of Local 636 contains no such mandate, nor do we find any such in the entire Local constitution and bylaws. In article 2 of the Local constitution, we do find provision for the calling of special meetings by call of the president, or on written request of 15 members in good standing. The bill of complaint makes no allegation that any effort was made to secure such a meeting on the questions involved.
In short, we do not find either in the sections cited or elsewhere in the constitutions and bylaws depended upon by plaintiff any specific prohibition against the expenditures contemplated, or any procedural rule which the actions complained of may be held to have violated.
We do find the general purposes of the Association stated in the preamble to its constitution, and we do find the following general language in the Local Union constitution in article 22:
“Sec. 6. This being a protective association, its funds shall be used only for its regular and legal expenses.”
In plaintiff's appendix, ? we find the following history:
A motion (passed at a regular meeting) to purchase a building to be used as a home for the Local;
the setting up of a nonprofit corporation .to be known as Pipe Fitters Local 636, Building Association, Ine., with the corporate purpose: “To acquire by gift, grant, devise, deed, or lease, take and receive and hold and operate, and maintain a place of meeting for the proper conduct of the business and to provide proper facilities for the soeial and fraternal gatherings for members of Pipe Fitters Local No. 636;”
bylaws of the Building Association providing that all members of Local 636 are members of the Association, and limiting the Association's membership and officers to members in good standing of Local 636;
the acquisition of an interest in a building in the name of the Association on land contract with $25,000 paid down, and a $125,000 balance due;
a photostatic copy of a blank certificate of indebtedness in the sum of $100, payable under resolution of the board of directors of the Building Association to an unnamed member in good standing of Local 636 at 3% interest and on or before 5 years from date of issue, and a resolution of the Building Association authorizing borrowing of funds upon such certificates from members for acquisition and maintenance of the building (the bill of complaint indicates that $27,000 worth of such certificates were actually issued to the various members) ;
and, finally, after a gap of approximately 3 years, a release between the trustee of the Association and the property owner cancelling the land contract, and the subsequent action of a Local Union meeting approving a recommendation that the executive board of the Local Union itself appropriate funds to reimburse its members for the certificates of indebtedness issued by its Building Association. (No explanation of the failure of the Building Association to complete payments upon the land contract, and to make repayment of the member loans, is afforded in the bill of complaint. And, on motion to dismiss, defendants’ proffered answer on this point is not considered. Mathews v. United Association, supra.)
We cannot, however, find from this history recited from plaintiff’s bill of complaint (and the appendix made a part thereof) that the appropriation last referred to was outside of the “regular and legal expenses” of the Local Union. The provision of a home for the Local Union certainly seems a “regular and legal” Local Union purpose. And, on failure of a home acquisition venture, repayment of Local member loans used for such a purpose does, likewise.
Nor can we hold that appropriating Local funds to defend a legal action brought against the duly constituted officers, directors and trustees of the Pipe Titters Loeal 636, Building Association, Inc., was beyond the scope of such language either. Indeed, sueh action appears specifically authorized by section 132 of the constitution of the United Association, entitled Expense of Litigation.
The chancellor below dismissed the bill of complaint because plaintiff had failed to exhaust his remedies within the Union before appealing to the courts.
Such, indeed, is generally the rule in Michigan. Zdero v. Briggs Manfg. Co., 338 Mich 549; Martin v. Favell, 344 Mich 215; Holman v. Industrial Stamping & Manfg. Co., 344 Mich 235; Cortez v. Ford Motor Company, supra.
In answer, appellant points to recognized exceptions (see Mathews, supra) — and particularly claims exception when members’ property rights are invaded by flagrant violations of the Union’s constitution or bylaws, citing O’Neill v. United Association, 348 Pa 531 (36 A2d 325).
The answer, of course, is that in the instant case we have found no well-pleaded facts upon which claim of invasion of plaintiff’s property rights, or violation of the constitution or bylaws, can be predicated.
The bill of complaint makes no claim of fraud, and we note no allegations from which any issue of fact pertaining to fraud could be drawn.
Affirmed. Costs to appellees.
Dethmers, C. J., and Caer, Kelly, Smith, Black, Voelker, and Kavanagh, JJ., concurred.
See opinion on motion for rehearing, post, 690.—Beportee.
As to matter set in smaller type on this and the following page, see opinion on motion for rehearing, post, 690.—Reporter. | [
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Carr, J.
Plaintiff was injured in a traffic accident occurring on Miller road, Genesee county, on May 17, 1951. He was at the time engaged in hauling gravel, with his own truck, for the defendant. A collision occurred between plaintiff’s vehicle and a truck operated by défendant’s employee, both drivers sustaining serious physical injuries.
Following the accident plaintiff received voluntary payments from defendant’s workmen’s compensation insurance carrier for the period from May 18 to July 31, 1951, in the total sum of $320. His hospital bill, amounting to $305.75, and a physician’s bill for $110 were likewise paid. The present action for damages was started by summons on August 7, 1951, the declaration being filed November 16th following. Thereafter defendant filed a demand for a more specific declaration with reference to the nature of plaintiff’s employment at the time of the accident, and by whom he was employed. To such demand plaintiff answered that at the time of sustaining the injuries for which he sought damages he was self- , employed and rendering services for defendant as an independent contractor. Said answer was filed February 11, 1952. Defendant’s answer to the dec laration was filed March 24, 1953, at which time the cause was at issue. In his pleading defendant alleged affirmatively that on the 17th of May, 1951, plaintiff was an employee of the defendant, that as such he was subject to the provisions of the workmen’s compensation act of the State, and that he had accepted compensation thereunder. No specific reply to these averments was made on behalf of the plaintiff.
On April 13, 1954, the case was dismissed for lack of progress. In July, 1955, plaintiff made application for benefits under the provisions of the workmen’s compensation law of the State. Hearing was had before a referee of the commission in January following, plaintiff being denied compensation. The order was reviewed by the appeal board, which affirmed the finding of the referee. It is not disputed that such action was based on the conclusion that plaintiff was an independent contractor rather than an employee of defendant at the time of the accident. The denial of compensation by the appeal board was not appealed-to this Court.
While the proceeding under the compensation act was pending plaintiff procured the instant case to be reinstated. The order therefor was, signed by the circuit judge on December 29, 1955, and filed on Jan-nary 12th thereafter. On February 29, 1956, plaintiff filed an amendment to his declaration, alleging that at the time of his injury on May 17, 1951, he was an independent contractor and not an employee of the defendant subject to the workmen’s compensation act. It was further set forth in said amendment that the driver of defendant’s truck was guilty of negligence in operating said vehicle on the left side of the cénter line of the 2-lane highway. No answer to this amendment was filed by defendant.
The ease was tried, beginning July 10, 1957, be-, fore the circuit judge without a jury. During the course of the proceeding counsel for defendant moved to dismiss the action, alleging in support thereof that plaintiff had elected to pursue his remedy under the workmen’s compensation act, thereby barring any right that he might have had to sue in a court of law for his damages, and that by failing to reply to the claim set forth in defendant’s answer that at the time of the accident he was an employee of defendant and as such subject to the provisions of the compensation act, he had admitted such affirmative defense. The motion was denied, and at the conclusion of the proofs judgment was entered for the plaintiff in the sum of $11,000, the court finding that negligence on the part of defendant’s driver was the proximate cause of the accident, and that plaintiff was at the time an independent contractor rather than an employee of defendant.
Following the decision of the case by the circuit judge counsel for plaintiff, on August 27, 1957, submitted a motion to increase the judgment, averring in support thereof that the amount of damages found was inadequate to cover loss of earnings and other elements of damage. The motion was denied. Counsel for defendant filed claim of appeal from the judgment, and plaintiff claimed a cross appeal from the denial of the motion to increase the judgment, specifying therein that such appeal was “limited to increasing the judgment heretofore entered in plaintiff’s behalf.”
On behalf of defendant it is argued that plaintiff should be held estopped to pursue his action at law for damages because of his acceptance of benefits under the workmen’s compensation act and his subsequent attempt to obtain an award of compensation, The claim that there was an election of .remedies on plaintiff’s part, advanced on the trial of the cause, was not well-founded under the facts in the controversy. At the time of the accident plaintiff was not an employee of the defendant and, hence, was not entitled to invoke the benefit of the workmen’s compensation act. It may be assumed that when the voluntary payments were made and accepted both parties were in error as to the legal relationship existing between them.
The finding of the court in the instant case that plaintiff was actually an independent contractor and rendering services to defendant as such on the 17th of May, 1951, is not questioned. The situation was, in consequence, that plaintiff had no right to pursue any remedy other than by way of an action at law for damages. The cases of Twork v. Munising Paper Co., 275 Mich 174; Morris v. Ford Motor Company, 320 Mich 372; and Demkiw v. Briggs Manfg. Co., 347 Mich 492, are distinguishable on the facts. In each of said cases the relation of employer and employee between the parties existed at the time plaintiff’s injury was sustained. Relief was. sought in each case on the basis of such relationship, and the duties, incidents and obligations pertaining thereto. Each holding was predicated on the provisions of the workmen’s compensation law and the obvious purpose of the legislature in its enactment. In the case at bar the situation is fundamentally different. The requisite relationship not existing, plaintiff had no right to seek benefits under said act. He had no right of election as to his remedy. The fact that he may have been in error in his conclusion as to the legal relationship between himself and the defendant does not alter the situation.
For somewhat analogous reasons defendant’s claim of estoppel must be rejected. Assuming that the averments of fact in defendant’s answer to plaintiff’s declaration are sufficient in substance to permit the argument to be advanced, the facts as disclosed by the record before ns do not afford a proper basis for the application of the doctrine. The parties were equally informed with reference to the nature of the relationship existing between them at the time of the accident. There was no concealment on plaintiff’s part of any material facts bearing on the question, nor does it appear that defendant was misled to his prejudice by improper conduct on plaintiff’s part. No claim is made that there was any deliberate attempt to mislead defendant. The conclusion is fully warranted that defendant knew all material facts involved. Such being the case he is not entitled to assert a claim of estoppel. Cudahy Brothers Co. v. West Michigan Dock & Market Corp., 285 Mich 18, 26; Richards v. Lowrie & Webb Lumber Co., 317 Mich 42. See, also, Viaene v. Mikel, 349 Mich 533, 542.
It is further contended on behalf of defendant that plaintiff’s failure to file reply to the affirmative allegations in the answer to the declaration must be construed as a binding admission of the truth of the averments as to plaintiff’s employment by defendant. Reliance’is placed on Michigan Court Rule No 23, § 2 (1945), which provides that:
“Every material allegation in the declaration or bill to which the defendant shall not make answer shall be taken as admitted by the defendant.”
' Court Rule No 24 imposes a like duty on plaintiff with reference to the denial of affirmative defenses alleged in the answer in any action. Cited also in support of the claim are Neada v. State Farm Life Insurance Company, 324 Mich 233 ; and Zdero v. Briggs Manufacturing Company, 338 Mich 549. The situations involved in these cases were materially different from that in the case at’ bar. As before noted, plaintiff, in reply to’ defendant’s demand for a more specific declaration.with reference to plaintiff’s em ployment at the time of the accident, replied under date of February 11,1952, to the effect that he was- at said time self-employed and was working- under a contract with defendant as an independent contractor. Defendant by his answer subsequently filed averred that plaintiff was an employee of defendant and that the parties were .subject to the Michigan workmen’s compensation act. The declaration was formally amended prior to trial, on February 29, 1956, affirmatively alleging the status of plaintiff at the time of his injury as that of an independent contractor, in effect denying the claim set forth in defendant’s answer. We think it may be said that issue was fairly joined on the question whether plaintiff was, as he claimed, an independent contractor, or, as defendant claimed, an employee. Dramis v. Dunbar, 280 Mich 300, 305. The trial, court whs not in error in determining the matter on the basis of the proofs. - • • '
This brings us to a consideration of the question raised by plaintiff’s appeal from the order of the circuit judge refusing- to increase the judgment. It is contended that the testimony of the plaintiff with reference to his loss of earnings following the accident, and the proofs relating to the extent of the injuries sustained by him, justified, and in fact required, a judgment in a greater sum than as determined by the trial judge. In effect, this Court is asked to weigh the testimony and to fix the damages to which plaintiff is entitled. In deciding the cause the circuit judge called attention to the fact that the testimony relating to plaintiff’s damages was “rather weak.” Plaintiff’s testimony indicated that he had records of his earnings after the accident, but he failed to produce them in court. Apparently reliance was placed on the trial on the fact that plaintiff lost the use of his truck because of the accident and, in consequence, sustained damages due to inability to carry on the business in which he had been previously engaged. ' He sought and obtained damages because of the loss of the truck, but obviously was not entitled to ask further damages on the ground that he was deprived of the continued use of the vehicle in his hauling operations. It is in evidence that in, 1951 following the injuries that he received in the accident he engaged in the hauling of gravel for another party by whom a truck was furnished. The proofs fully justify the conclusion that plaintiff was not incapacitated from pursuing profitable lines of employment as the result of his injuries. The damages sought to be recovered were unliquidated. The trial judge listened to the testimony and presumably used his best judgment in weighing it and in determining the amount of recovery that should be allowed.
Emphasis is placed by plaintiff’s counsel on the fact that this Court, faced with a motion for a new trial on the ground' of excessiveness of verdict and judgment, has held that the motion should be granted unless the plaintiff would voluntarily remit a portion of the judgment, thereby reducing it to an amount that the proofs might be construed as sustaining. Attention is also directed to Michigan Court Rule No 72, § 1, subd (g) (1945), with reference to the power of this Court to “give any judgment and make any order” which the trial court should have granted or made. However, it was not the intent of such provision of the rule that this Court should act as a jury in determining the amount of unliquidated damages. The rule generally specified in States wherein the civil law is not followed recognizes that there is no right or power to increase the amount of a verdict for such damages. 3 Am Jur, Appeal and Error, § 1180, p 688.
In Burdict v. Missouri Pacific R. Co., 123 Mo 221 (27 SW 453, 26 LRA 384, 45 Am St Rep 528), it was urged that if a court may properly reduce damages when excessive, an increase in cabe of an inadequate verdict mig'ht with equal propriety be granted. The argument was rejected, the court saying (p 241):
“We do not see the force of this line of argument. In one case the court simply says the judgment may stand for a part of the amount found by the jury, while in the other case it would add something never within the terms of the verdict.”
Counsel for plaintiff in his supplemental brief has cited certain prior decisions of this Court in each of which it is claimed this Court increased the judgment of the trial judge sitting without a jury. None involved facts analogous to those in the case at bar. In Yelverton v. Hilliard, 38 Mich 355, the action was in ejectment. A review of the record indicated that the judgment entered was not in accordance with the trial court’s findings as to the facts. The case was reversed, subject to the right to proceedings for a new trial under the statute, with the direction that the judgment entered should comply with the findings. The matter of determiningunliquidated damages was not in issue. In Hamilton v. Ames, 74 Mich 298, the action was in assumpsit on a lease. Involved was the right to recover because of the failure of lessee to pay taxes in accordance with the contract. An error apparently occurred in the computation of the trial judge, and this Court directed that the judgment be amended to represent the amount of the taxes and the interest upon the same to the date of judgment in the circuit court. Here, again, the controversy did not involve unliquidated damages. Burnham v. Dillon, 100 Mich 359, is also cited. That, however, was a suit in equity and as such was tried de novo by this Court on the record filed in the cause.
In Jenkins v. Bentley, 277 Mich. 81, plaintiff brought suit in bis own right to recover for amounts expended by him on account of injuries to his minor .son, claimed to have resulted from the negligence of defendant. As guardian, he brought a second suit for personal injuries sustained by the son. In the first case'plaintiff concluded that the amount of the judgment in his favor was inadequate, and appealed. Both parties appealed from the judgment in favor of plaintiff as guardian. Plaintiff contended in the first case, that the trial court, hearing the cases without a jury,' erred in not awarding adequate damages. He did' not ask that a new trial be granted, but that the Court increase the award of damages. Referring to Court Rule No' 64 (1933), which is identical with the-present Court Rule. (1945) of the same number, the request was denied. A like claim as to inadequacy of the judgment was advanced in the second case, with like result. In the course of the opinion a statefh'ent was made that the judgments could not be reversed for the reasons assigned in view of the fact that no, motion for a new trial was made in circuit court. It is apparefit, however, that the result in each case,was based .on the conclusion that under the rule the Court was without jurisdiction to substitute its judgment f or that Of the circuit judge on the question of'damages. In Riber v. Morris, 279 Mich 344, cited by plaintiff, the Court made reference to the statement in Jenkins v. Bentley with reference to tlm failure of plaintiff to move for a new trial, pointing out (p 347) that such statement was “not necessary to decision, was incorrect and is now deleted.” The Court did not intimate in the latter' case that the decisions in the Jenlcins Cases were erroneous. The holding that the Court Rule-precluded the granting of the relief sought was impliedly approved.
In Ginsberg v. Reliable Linen Service Co., 292 Mich 70, this Court, ih reversing a judgment in favor of defendant in an action of assumpsit on a contract, concluded that the trial court was in error in the construction placed on the agreement as written. The case was accordingly reversed and remanded for determination of damages.
■ In Hudson v. Enichen, 310 Mich 18, to which counsel for plaintiff calls attention, the action was brought for conversion of property. On the first trial in circuit court plaintiff was given a judgment in the sum of $1,150. This Court, on appeal, held that said amount was inadequate and against the preponderance of the evidence. A new trial was granted, which resulted in a judgment for plaintiff in the sum of $2,000, together with $400 interest, and costs. The case was appealed the second time by plaintiff on the ground that the judgment was inadequate, and that the testimony relating to the value of the property at the time of conversion so indicated. Counsel representing plaintiff, and likewise counsel representing defendants, called attention to the fact that the case had been tried "twice and twice appealed, and asked that this Court make a final determination of the issue involved, which the Court did. The casé was remanded for entry of judgment in the sum of $3,000 together with interest from the time of conversion to the date of entry of judgment. Obviously an unusual situation was presented, and apparently this Court took the action indicated because of the requests of the parties. It will be noted that the appeal was from the judgment entered, and was not based on a refusal by the trial judge to increase it.
In Stone v. Posen, 310 Mich 712, also cited, the action was by the owner of a building against tenants because of damage by fire. Judgment was entered for $1,000. The undisputed testimony in the case disclosed that the total loss was $1,200. The situation was thus somewhat unusual in that the precise amount of the damage sustained by plaintiff was •fixed. Accordingly the judgment was reversed and the case remanded for entry of judgment in the sum of $1,200, in accordance with the record.
None of the cases cited by counsel may be said to support the claim that in a tort action involving a finding as to unliquidated damages this Court may on' appeal determine the credibility of witnesses, weigh the testimony, and substitute its judgment for that of the circuit-judge hearing the cause. We are in accord with the general principle that such practice is improper and is unauthorized by either statute or rule. As noted, the appeal taken by plaintiff was limited in scope, being directed to the action of the trial court in denying plaintiffs motion for an increased judgment. On the record in the case we may not say that the circuit judge erred in denying said motion.
The judgment is affirmed, but without costs, neither party having fully prevailed.
Dethmers, C. J., and Kelly, Edwards, and Kavanagh, JJ., concurred with Carr, J.
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Kelly, J.
(dissenting). At the June, 1957, term of Court this appeal was first submitted and on the 24th of December, 1957, an opinion, written by Justice Edward M. Sharpe, resulted in the affirmance of the trial court’s order for judgment non obstante veredicto. Chief Justice Dethmers, Justice Carr and Justice Kelly joined with Justice Sharpe for affirmance. Justice Black wrote for reversal and Justices Edwards, Smith and Voelker concurred. Those opinions are reported in 350 Mich 579.
Motion for rehearing was granted by a divided Court, following the retirement of Justice Sharpe, and the case is again before us. Nothing new has been submitted in the way of evidence, argument or briefs — the cause is presently before us on the originally filed briefs and appendix. The only change, as I see it, is the change of personnel of our Court, as Justice Sharpe’s term expired on December 31, 1957.
There being no change in the briefs, evidence, or proofs, the legal principles at issue being the same, the result should be the same. No purpose would be served by restating the facts or the reasons for the result reached. The prior disposition of the case should not be changed. Judgment should be affirmed, costs to defendant.
Dethmers, C. J., and Carr, J., concurred with Kelly, J.
Voelker, J.
There is one other change which my Brother overlooks. Along with the change in personnel on this Court already noted by him there has come, for better or worse, several significant changes in how a majority of this Court views the law. And this particular area of the law of negligence is chief among them.
Justice Sharpe originally affirmed this case on the basis of Schillinger v. Wyman, 331 Mich 160. Mrs. Steger had not “seen what was there to be seen;” therefore she was deemed guilty of contributory negligence as a matter of law. Justice Kelly would presumably for the same reason likewise affirm. Since the departure of Justice Sharpe the Shillinger Case has been sharply criticized (Shaw v. Bashore, 353 Mich 31), and it and its progeny (so far at least as concerns the presumption of due care) may henceforth be regarded as overruled and laid to rest.
That should perhaps be enough to say, but there is a little more. Even if the rule of Schillinger were still the law, the fact situation in that case and this are vastly different. That case involved a hardy pedestrian undertaking the great adventure of walking obliviously across a 4-lane superhighway in the open countryside at a time when no other traffic or pedestrians were abroad and no other cars, were in sight' in either direction. The pedestrian lost his .adventure, and the case.
Here we have a motorist approaching a school which was letting out, with all of the attendant and obvious congestion of darting and milling people and cars and school buses. Here our pedestrian plaintiff had many things to observe from many directions. Even if she had continued to look east this plaintiff, a short woman under 5 feet, could not have seen even the top of the approaching car until it hove over the crest of Cobb street hill. She did look in that direction from a place of safety and she did so at a time when, on favorable view, we must assume that the defendant’s ear was not yet in sight. She then started forward, her best attention for good reason concentrated mainly on possible danger ahead and to her right; imminent and close danger which, we hazard a guess, a person exercising reasonable prudence might also normally expect to encounter and pay heed to under the circumstances of a crowded departure from a closing school.
The thing comes down to this: If Mrs. Steger’s conduct under these circumstances amounted to a want of due care, it was for the jury and not for the trial judge or us to determine. We think that in these circumstances the jury was entitled to find in effect — if it chose — that for the moment the thronged street belonged principally to the outletting school and to those gathered about it. and that any passing motorist should have proceeded accordingly. But no, we are told, in effect, that these considerations are unimportant and that Mrs. Steger must lose because she failed to “see what was there to be seen.” In lieu of a verdict we shall instead present her with an incantation, a magic phrase. Presumably if she had indeed kept her eyes glued on the westbound Blanchard car and instead been clobbered by an eastbound school bus we would have regretfully told her the same thing.
Such a rule, when divorced from the facts to which it might properly apply, can he made to fit all occasions. And so it happened — the rule of 8 chilling er has since been applied regardless of the facts. This is only the latest attempt. Such blind application of a rule is judicially to endow pedestrian mankind with the swivelhead of an owl — a curious species of mankind ostensibly equipped with extra eyes located elsewhere than in the head. But for all our past graciousness in thus endowing pedestrians it seemed that reciprocity was not to be involved. For such a rule also totally overlooked the driver and indulgently, if inconsistently, rewarded the astigmatic motorist for himself failing to see what was there to be seen. Apparently the more careless the motorist — as demonstrated in the unpredictable light of what later happened — the more careful the plodding pedestrian should be to lavish his very best due care upon the most careless person or situation present. So it came to pass that we not only generously endowed the pedestrian with a swivel head, but with prescience as well. We were willing to let him have everything but a verdict.
Rules of law are necessary; properly applied they can succinctly gather in the loose ends of a case and help rationalize the decision. Our courts could scarcely operate without them. But when a rule of law or its application becomes so divorced from the context of reality, from the living human situations to which it is sought to be applied, it becomes meaningless incantation and downright harmful. It isn’t always what the rule says that is so bad; it is how it is applied. The rule 'of Schittmger, quoted by Justice Sharpe in this case, has been so consistently misapplied in so many cases that one is sore tempted to throw out the rule along with the misapplications. At the very least it must be care fully confined to those factual situations it properly fits.
Thus in our case neither plaintiff’s conduct nor the rules we would apply thereto can he divorced from the practical human realities of the situation, else she finds herself not only hit by a disembodied car, legally speaking, but hit once again — and this time “for keeps” — by a disembodied rule. As we recently wrote in Hoffman v. Burkhead, 353 Mich 47, 56, 57:
“We cannot in these situations isolate and examine the plaintiff’s conduct in a vacuum, like a beetle under a glass; his conduct must be examined and weighed in conjunction with what corresponding conduct the plaintiff might reasonably have expected on the part of the defendant. As Mr. Justice Black recently so well said in his well-reasoned opinion in Weller v. Mancha, 351 Mich 50, 67, quoting approvingly from earlier but recent cases:
“ ‘ “As we have previously seen (Clark v. Shefferly, 346 Mich 332) the question of contributory negligence is usually judged, not alone by what the plaintiff did or did not do, but also by the conjoining facts pertaining to what in the way of legal duty the plaintiff had a right to expect of the defendant.” ’ ”
Mr. Justice Smith phrases another facet of the problem with characteristic penetration and clarity in his searching opinion in McKinney v. Yelavich, 352 Mich 687, 697, 698, where he writes:
“We find repeatedly in our cases the court’s observation that the automobile was ‘plainly there to be seen’ and, hence, plaintiff’s failure to see it comprised contributory negligence ‘as a matter of law.’ This easy and fallacious legal jingle answers exactly nothing. Of course the car is always there to be seen. It is just as visible to the pedestrian as the pedestrian is to its driver. But the question is not what the pedestrian could have seen, as a matter of physical fact, but what he should have seen in the exercise of due care. These are vastly different propositions.”
Nor should plaintiff’s conduct be weighed and judicially condemned solely on the basis of what other witnesses saw or might have seen, as Justice Sharpe’s original opinion in this case would have it. Of course other people in other and possibly more favorable positions and postures may have seen the Blanchard car, especially people in other cars moving toward the rapidly approaching ear. For one thing-, they may for the moment have had nothing else to do. Are we blindly to measure the presence or absence of due care on the part of Maude Steger by what others (upon whom may have rested no such pressing corresponding duties and preoccupations) might possibly have physically seen? Are we to turn her out of court because a workman safely up on a telephone pole, say, might possibly have seen the Blanchard car a mile away? We say no.
The fact that Mrs. Steger first did look to the east, and that she then started to cross without further eastward look, just as the mentioned witnesses were driving east followed by their seeing defendant’s car, affords no ground for holding Mrs. Steger guilty of contributory negligence as a matter of law. This must be so unless we are to declare that a pedestrian must in all circumstances,' even the extreme ones of congestion and concentrated one-direction motor traffic here shown, look and continue to look only in the direction of the ultimate “after-the-fact” greater danger — danger created by proven negligence of a defendant motorist — regardless of the imminence of possible harm from other sources and directions.
As we have suggested, such a rule divorced from the context of applicable facts is to say to a pedestrian that if the car of a negligent motorist manages to hit him, due care requires that the victim should all along have ignored all else only to stare at it. This is a curious rule of due care. Such a rule tells a pedestrian that he should ignore all other areas that might require watchfulness on his part and, with the prescience of an Indian fakir, concentrate only on what later proved to be the most careless and dangerous among all the possible sources of harm.
For reasons given in the excellent • original opinion of Mr. Justice Black, supplemented now by Mr. Justice Smith’s landmark opinion in McKinney v. Yelavich, supra, we decline to so hold. Reversed and remanded for entry of judgment on the verdict of the jury. Costs to plaintiffs.
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Voelker, J. | [
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Kavanagh, J.
Plaintiff is a corporation organized and existing under the Michigan general corporation act of 1931. It has only one class of stock, and had as its original corporate purpose the construction and operation of a vehicular and pedestrian tunnel beneath the Detroit river, connecting the cities of Detroit, Michigan, and Windsor, Ontario, Canada. Prior to the annual meeting of January 10, 1955, required notice was given to all shareholders that a resolution to amend article 2, setting forth the purposes of the corporation, was to be presented at the annual meeting. This notice was forwarded on December 21, 1954, to all shareholders of record as of that date. At the annual meeting the following resolution was duly presented to amend article 2 by adding to article 2, in part, the following:
“To subscribe for, buy, sell, pledge, mortgage, discount and rediscount, underwrite, hold and otherwise d.eal in, acquire, and dispose of stocks, bonds, notes, drafts, bills of exchange, obligations or securities of any trust, syndicate, partnership, individual, private or public corporation, government, or municipality, both as principal and as agent; and to do any other act or thing permitted by law for the preservation, protection, improvement or enhancement of the value of such stocks, bonds, notes, drafts, bills of exchange, obligations, or securities.”
Defendant, John H. Martin, under date of January 4, 1955, sent the following letter to Mr. William S. Burton, president of Detroit & Canada Tunnel Corporation:
“January 4,1955
“Mr. William S. Burton, President Detroit & Canada Tunnel Corporation 200 Bates Street Detroit 26, Michigan “Bear Mr. Burton:
“I have today signed and returned to the proxy committee the form of proxy solicited by the management in connection with the forthcoming annual meeting of the corporation. As you will undoubtedly learn in the course of tallying proxies, I have voted against the adoption of the proposed amendment to article 2 of the articles of incorporation providing for additional investment powers. I am opposed to the corporation having the additional powers.
“In your letter to stockholders, appearing in the annual report recently received, you make the following statement:
“ ‘A favorable vote of a majority of the outstanding stock for the proposed amendment is necessary to carry out the recommendation of your board with respect to the broadening of the powers of incorporation outlined above.’
“As a stockholder of the corporation, it is _my position that such amendment cannot be validly adopted except by the unanimous vote of the holders of all of the outstanding stock of the corporation (which, in view of my negative vote, such amendment cannot receive); then such amendment cannot be validly adopted by a mere majority of the outstanding stock, and that any exercise of additional powers which may be purportedly conferred on the corporation by such amendment will be illegal and void.
“I request that this letter be presented to the meeting and that my objection herein set forth be made a matter of record by incorporating this letter in the minutes of said meeting.
“Very truly yours,
/s/ “John H. Martin.”
The proposed amendment was adopted by a vote of 240,324 shares to 2,909 shares. Eighteen shares were not voted. Subsequently, on January 21, 1955, the duly executed certificate of amendment to the articles of incorporation was filed with the Michigan corporation and securities commission. Defendant, as the owner of 231 shares, voted against the adoption of the proposed resolution. A controversy having arisen as a result of the defendant’s letter and the vote on the resolution concerning the validity of the amendment to the articles of incorporation, plaintiff instituted this action in the nature of a petition for a declaration of rights.
Plaintiff asked that the trial court decree: (1) that the amendment to article 2 of plaintiff’s articles of incorporation adopted at the annual meeting of shareholders on January 10, 1955, is in all respects valid and binding upon defendant and all other shareholders of plaintiff; (2) that plaintiff has and may validly exercise all of the powers as set forth in its articles of incorporation as so amended; (3) that the court enter an order in accordance with Michigan Court Rule No 16 (1945) directing the manner and form of the notice of this action which shall be given to shareholders of plaintiff.
Subsequently, on February 14,1955, such an order directing the manner and form of the notice of action was entered by the trial court. On March 15, 1955, John H. Martin, defendant, filed an answer. He was subsequently permitted to file 2 amended answers. For the purpose of this opinion, I am going to treat them as 1 answer. ■ •
Defendant affirmatively avers that the business and fundamental purpose of plaintiff is that of ownership and operation of the tunnel; that the assets, property, plant, and equipment of plaintiff corporation are entirely devoted to the tunnel business; that the principal revenues of plaintiff are, and have been since its incorporation, derived from tunnel operations ; that by Detroit city ordinance 7-C, effective October, 1927, the city of Detroit will acquire said tunnel properties at the end of 60 years from the date of formal opening, namely 1990, without any payment whatever. Such ordinance further provides that the city of Detroit may purchase the tunnel properties in 1980 for the appraised value less 50% for amortization; in 1970 for the appraised value less 40% ; in 1960 for the appraised value less 10%. Defendant avers that large amounts of money have become available as a result of depreciation accruals which have not been and will not be expended for capital betterment or capital replacement of the tunnel facilities; that under such circumstances it became and is the duty of the officers and board of plaintiff corporation to return to the shareholders such funds which are not being used to carry out the
fundamental purpose and business of the corporation, not to retain such funds on hand until acquisition of the tunnel properties by the city of Detroit in 1990; that the officers and directors of plaintiff corporation recognized this situation and initiated an amendment to article 8 to permit this; that the shareholders of plaintiff corporation on January 11,1954, adopted an amendment to article 8, which reads as follows:
“Certain tunnel properties of this corporation are subject to acquisition by the city of Detroit as provided for in Detroit city ordinance 7-C, effective October 28,1927. The board of directors are authorized to declare and pay liquidating dividends to the holders of the $10 par value common stock of this corporation out of capital surplus to the extent that the amount of amortization and depreciation of such municipally-recoverable properties may be deemed by the board of directors to be in excess of amounts necessary for capital betterment and as cash funds therefor shall, within the judgment and discretion of the board of directors, become available. The amount and time or times of such payments shall be determined by the board of directors within their judgment and discretion. The holder of any stock certificate for said common stock shall not be entitled to receive payment of any such liquidating dividend until a transcript of this article 8 shall be indorsed thereon by this corporation or its agent designated by the board of directors for that purpose. Every such payment is intended and shall be construed to be a distribution of a liquidating dividend in cancellation and redemption of the stock represented by such certificates to the extent of such payment. Shareholders shall be notified of the nature and amount of each such payment and a complete cumulative report of the payments so made shall be included in the annual reports of the corporation to its shareholders and to the Michigan corporation and securities commission.”
Subsequent to the adoption of the amendment to article 8, liquidating dividends from plaintiff corporation have been paid as follows: 15^ a share on July 9, 1954; 20^ a share on January 4, 1955; 10^ a share on April 21, 1955.
Defendant further avers that the officers and directors of plaintiff corporation recognize that the purported amendment to article 2 is a fundamental change in the purpose of the corporation and by said amendment are attempting to circumvent their duty to pay liquidating dividends as recognized by the aforesaid amendment to article 8; that they plan to curtail such dividends and use corporate funds in the proposed investment business which would otherwise be returned to the shareholders; and that they further plan to ultimately convert the tunnel corporation business to the investment business. Lastly, defendant avers that if section 43 of PA 1931, No 327, as amended (CLS 1956, § 450.43 [Stat Ann 1957 Cum Supp § 21.43]), is interpreted to permit the adoption of article 2 of plaintiff’s articles of incorporation, as set forth in paragraph 6 of plaintiff’s petition, that said section, as so interpreted, violates the Constitution of the State of Michigan (1908) and the contract clause of the Constitution of the United States, and is State action in violation of the 14th amendment (due process clause) of the Constitution of the United States.
Motion to strike the answer and both amended answers was made by plaintiff on the grounds that: (1) the allegations as set forth in said answer and amendments to answer, if true, do not avoid the legal effect of or defeat the cause of action set forth in plaintiff’s petition for declaration of rights in whole or in part; (2) said answer and amended answers of defendant are insufficient in substance; (3) the allegations set forth in said answer and amended answers of defendant, if true, are immaterial to a determination of the questions raised by the said plaintiff; (4) the allegations set forth in said answer and amended answers of defendant, if true, do not constitute a bar to the relief for which plaintiff prays in its said petition.
The lower court, for reasons set forth in 2 opinions, granted plaintiff’s motion to strike the answers of defendant, and entered a final decree, dated March 22, 1957, granting the relief prayed for in plaintiff’s petition. Defendant takes a general appeal to this Court from such decree filed March 22, 1957.
The lower court ruled that section 43 of the general corporation act, as amended, permitted amendment of the articles of incorporation without limitation so long as the articles, as amended, would have been authorized by the general corporation act as original articles, and that such amendment could be made even where it might convert a tunnel corporation into an investment business; that section 59 and section 192 of the general corporation act have no application to section 43 of the act; that the defendant could not claim that he was induced to purchase his stock in reliance upon liquidating dividends since he became a holder of record before the amendment providing for liquidating dividends; that the amendment authorizing liquidating dividends fixed discretion for the declaration of the same in the board of directors, and left to the discretion of such board the amount and times of payment; that defendant is not a creditor or third party dealing with the corporation, and, for that reason, the contract clause protection would not apply; that defendant had cited to him no case in which an amendment of corporate articles offended the concept of due process where there was no impairment of contractual rights; that defendant had not shown that he would in any way he deprived of property without due process of law, and, therefore, the motion to strike the answer and amendments to the answer should be granted.
Defendant-appellant in this Court raises 2 questions :
(1) Does a proper interpretation of the Michigan general corporation act (PA 1931, No 327, as amended) permit such a corporation, organized with its fundamental purpose the construction and operation of a tunnel beneath the Detroit river, to change, by such amendment, to a securities investment business by a vote of the majority of its shareholders against the objection of minority shareholders?
(2) Is the Michigan general corporation act invalid under the due process clause of the Michigan Constitution and under the 14th amendment of the Constitution of the United States to the extent it permitted such fundamental change?
The first question proposed by defendant-appellant is not the exact question that we have before us. In the instant case there was not a change from the fundamental purpose of the original corporation to a securities investment business. The original purpose was retained, and, under the amendment adopted, the scope of the investments the corporation could make has been enlarged.
Section 43 of PA 1931, No 327, was discussed by Justice Chandler in the case of Seaman v. Ironwood Amusement Corp., 283 Mich 220, 237, where he refers to Wilgus & Hamilton, Michigan Corporation Law, p 292, and states:
“It would therefore appear that a majority of the stockholders may pass any amendment ‘so long as the articles as amended would have been authorized by this act as original articles.’ ”
It appears to be undisputed in this record that the expanding of the investment field of the plaintiff corporation would have been authorized as a proper purpose in original articles.
The Delaware court in the case of Federal United Corporation v. Havender, 24 Del Ch 318 (11 A2d 331), discussing the substantial elements of merger and provisions of general corporation law (of Delaware), said (pp 333, 334):
“It is elementary that these provisions are written into every corporate charter. The shareholder has notice that the corporation whose shares he has acquired may be merged with another corporation if the required majority of the shareholders agree. He is informed that the merger agreement may prescribe the terms and conditions of the merger, the mode of carrying it into effect, and the manner of converting the shares of the constituent corporations into the shares of the resulting corporation.”
Defendant in the present case acquired his shares of stock in this corporation subsequent to the adoption of section 43 of the general corporation act, as amended, and is presumed to have taken them subject to the right of a majority of the shareholders to amend its articles, without limitation so long as the articles, as amended, would have been authorized by this act as original articles. Impliedly, the certificate of stock contains just such a provision. Section 43 of the Michigan general corporation act is not ambiguous and therefore does not need a construction going beyond its terms. Sections 59 and 192 of the general corporation act are not to be read in connection therewith as a limitation on section 43.
Defendant primarily relies upon the case of Sutton v. Globe Knitting Works, 276 Mich 200 (105 ALR 1447), where plaintiff was a minority holder of preferred stock. The certificate issued for such stock contained the following provision: “This stock is subject to redemption and shall be redeemed at par on January 25, 1932, provided the same is then outstanding.” The articles of association contained a similar provision with reference to the redemption of preferred stock. Plaintiff tendered his stock for redemption on January 25,1932, and demanded payment at par value. It was refused. He brought suit to recover the amount alleged due him, and the defense was raised that the articles had been amended after plaintiff became owner of his shares, but prior to January 25, 1932, extending the redemption date to January 25, 1957. The Court there expressly limited section 43 with sections 59 and 192, saying (p 209) :
“It seems clear that the redemption right of plaintiff as a preferred stockholder is something more and different in character than an ordinary incidental right of a stockholder, such as voting for the election of a director of the company, and that his right is contractual in nature.”
The inescapable conclusion is that notwithstanding the broad terms in which section 43 of the act is expressed, the legislature clearly and conclusively intended to preserve vested rights of the character there asserted by plaintiff by expressly stating in section 192:
“This act shall not impair or affect any act done, offense committed or right accruing, accrued, or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time this act takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if this act had not been passed.” (Emphasis ours.) CL 1948, § 450.192 (Stat Ann § 21.193).
The Sutton Case is distinguishable from the instant case in the following respects: (1) In the Sut- ■ ton Case the minority preferred shareholder became an owner prior to the effective date of the general corporation act; (2) The articles fixed a definite time and precise formula for the redemption of the preferred stock. In the Sutton Case the Court said ,(p 209):
“This contract right was presumably a condition precedent to plaintiff’s determination to purchase preferred stock in the defendant company. The redemption provision was a definite undertaking on the part of the defendant corporation to redeem at • a given time and on given terms the stock plaintiff agreed to purchase.”
In the instant case stock of defendant was purchased after the effective date of the general corporation act and subject to all of its provisions, including section 43.
The defendant herein cannot claim that he was induced to purchase his stock in reliance upon liquidating dividends since he became a shareholder of record before the adoption of the amendment providing for liquidating dividends. The amendment authorizing liquidating dividends fixed discretion for the declaration of the time and amounts of dividends in the board of directors. Therefore, the decision of Sutton v. Globe Knitting Works, supra, does not apply to the instant case.
In Johnson v. Bradley Knitting Co., 228 Wis 566 (280 NW 688, 117 ALR 1276), construing a similar right to amend the articles of incorporation in the statutes of Wisconsin, its court said (p 581):
“The proposed amendments in the instant case were adopted by the required statutory vote. We must hold the amendments valid and binding upon the plaintiff.”
In the Johnson Case, the supreme court of'Wisconsin took notice of- the fact that the present question presented had never been squarely passed upon by their court. The same situation is true here in Michigan. The court in the Johnson Case said (p 577):
“If these statutory provisions in effect at the time plaintiff acquired his stock are deemed to be conditions of the stock certificates and of the corporate charter, then the plaintiff consents in advance to the making of such changes as the statutes permit, and an exercise of the right by the State or by a prescribed majority to whom'the power may be delegated is neither an impairment or breach of the contract.” '
It is argued that a majority of the shareholders of a corporation cannot fraudulently or dishonestly conspire to turn over to themselves corporate property or advantages to the detriment of the corpora; tion itself or a minority of its shareholders. . It is also the law, assuming the corporation has the power, that the majority, under authority lodged with them, and the board of directors in the field where it is the governing body, are supreme within the limits of honest administration and the boundaries of discretion. . It is elementary law that legal power cannot be used to effectuate a fraudulent purpose. This rule has no application in the instant case since no fraud is alleged or proved by defendant.
Our Michigan Supreme Court, in an opinion written by Justice North in the case of Dratz v. Occidental Hotel Co., 325 Mich 699, in construing a Delaware statute similar to the Michigan general corporation statute, but with reference to the' merger and consolidation provisions thereof, by a statutory vote of the stockholders, whereby a plan was adopted that wiped out certain interests of the. preferred stockholders, by an amendment on vote of shareholders as authorized by its statutes, had this to say with réference to the impairment of plaintiff’s right with reference to the contract and due process clauses of the State and'Federal Constitutions (p 721):
“Nor are we in accord with appellants’ contention that the ’ instant merger should be held void as to nonassenting preferred stockholders on the ground that it resulted in impairment of plaintiffs’ rights guaranteed by article 1, § 10, and the Fourteenth Amendment of the Federal Constitution. Since, as hereinbefore indicated plaintiffs or their assignors as stockholders in a Delaware corporation did not have a vested right to payment of dividends or to redemption of their stock for which they seek recovery, the consolidation perfected in compliance with the Delaware law did not impair or violate their rights guaranteed by the Federal Constitution.”
Justice North then quoted from the case of Federal United Corp. v. Havender, as earlier quoted in this opinion, to the effect that the statutory provisions are a part of every corporate charter, and the shareholder has notice that the corporation whose shares he has acquired may be merged with another corporation if the required majority of the shareholders agree.
While there is considerable confusion in the law of other States with respect to the contract clause and due process clause of the State and Federal Constitutions, as applied to like statutory provisions, we think the statement in Coombes v. Getz, 285 US 434 (52 S Ct 435, 76 L ed 866) to be the controlling rule of law (pp 441, 442):
■ “The authority of a State under the so-called reserved power (of the California constitution which provision in effect is the same as that in the Michigan Constitution ) is wide; but it is not unlimited. The corporate charter may be repealed or amended, and, within limits not now necessary to define, the interrelations of State, corporation and stockholders may be changed; but neither vested property rights nor obligations of contracts of third persons may be destroyed or impaired.”
In 7 Fletcher Cyclopedia Corporations (Perm ed), §§ 3680, 3681, it is said:
“The power of alteration or amendment is not without limit and does not invest the legislature with unrestricted control over the charter of the corporation created by it. * * *
“The reserved right of amendment, alteration or repeal, whether contained in a statute or constitutional provision, must be exercised in subjection to the various other constitutional commands and restrictions. Due process of law must be observed, and there must be no denial of the equal protection of the laws, nor impairment of the obligation of contract.”
We point out, however, that we cannot agree with appellant’s contention that the amendment in the instant case results in impairment of defendant’s rights guaranteed by the contract clause, the due process clause, and the equal protection clause of the 14th amendment and the State Constitution. As hereinbefore indicated, defendant had no vested right to payment of dividends. His certificate of stock impliedly contained a provision permitting the alteration in the articles of incorporation of the company by a majority of the shareholders voting at a properly conducted meeting for that purpose.
Section 43 of the Michigan general corporation act permits a corporation, subject to that act, to amend ■its articles of incorporation to broaden its purposes, as was done in the instant case, if a majority of the shareholders entitled to vote approve the amendment. Plaintiff is such a corporation and has complied with section 43 (CLS 1956, § 450.43 [Stat Ann 1957 Cum Supp § 21.43]). Sections 44, 54, 59, and 192 of the Michigan general corporation act (CL 1948, § 450.44, CLS 1956, § 450.54, CL 1948, §§ 450.59, -450.192 [Stat Ann § 21.44, Stat Ann 1957 Cum Supp § 21.54, Stat Ann §§ 21.59, 21.193]) are not applicable to the instant case.
The amendment as adopted on January 10, 1955, by plaintiff corporation through a majority vote of its shareholders did not deprive defendant of any contractual right or due process of law either under ■the State' or Federal Constitution.
The decision of the lower court should he affirmed. ■Costs to plaintiff.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Voelker, JJ., concurred.
See CL 1948, §§ 691.501-691.507 (Stat Ann §§ 27.501-27.507).— Reporter.
Municipal Coüe, City of Detroit, eh, 412, p 1233.-Reporter.
See CL 1948, §§450.59, 450.192 (Stat Ann §§ 21.59, 21.193).— Reporter.
TJS Const, art 1, § 10; Am 14; Midi Const (1908), art 2, §§ 9, Í6;—Repoktek.
Reference is to Const (1908), art 12, § I.—Reporter. | [
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] |
Wiest, J.
On a summer afternoon, plaintiff, a boy 12 years of age, was a passenger on a street car in the city of Detroit, and occupied a seat on the left side of the car, and rested his left arm upon a window sill, with some part of the arm protruding outside of the window. Plaintiff testified he did not know whether any part of his arm protruded beyond the window opening, but a witness called by defendant testified plaintiff’s elbow rested upon the window sill and his forearm hung down along the outside of the car. The street car was proceeding west on the north track on Jefferson avenue, a very busy street, and when near Field avenue, a truck belonging to defendant and going east on Jefferson avenue scraped or side-swiped the street car and came into contact with and occasioned a compound fracture of plaintiff’s left forearm. Plaintiff recovered judgment in the circuit court; the question of his contributory-negligence being submitted to the jury.
The sole question presented here is whether plaintiff was guilty of contributory negligence, as a matter of law, in permitting his arm to project beyond the car window. It is the claim of counsel for defendant that it is negligence per se for a passenger on a street car in a great and busy city like Detroit, to protrude any part of his arm beyond the window.
The question seems to be one of first impression in this State, except as we touched upon it in Corey v. Hartel, 216 Mich. 675.
Double tracks are laid on Jefferson avenue, and the car on which plaintiff was riding was on the track to the north of the center of the street, and under the traffic regulations the truck driven by defendant’s employee in going east was required to keep to the south of the center of the street.
We cannot announce an arbitrary rule of law relative to the position a passenger upon a street car must assume. It is sufficient to say that a passenger upon a street car must exercise a degree of care commensurate with the obvious dangers, or such as are within the comprehension of persons of ordinary foresight and prudence.
Had plaintiff canvassed the possibility of danger in resting his arm on the window sill with his forearm hanging down the side of the car, if he so placed his arm, he would have sensed the fact that he was seated where street traffic had no right to come near that side of the car, and that the car was on a wide paved street where there were no poles or anything else likely to strike him. Plaintiff was not bound to anticipate violations of traffic regulations and to hold himself prepared to avoid injury thereby.
Pollock on Torts (9th Ed.), p. 41, is cited with approval in Cashmore v. Chief Commissioner, 20 C. L. R. (Austr.) 1 (8 British Ruling Cases, 650), and is applicable here:
“If men went about to guard themselves against every risk to themselves or others which might by ingenious conjectures be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.”
The defendant cannot be heard to say that the negligent disregard of human safety by the driver of the truck was conduct to be reasonably apprehended by plaintiff in riding in the street car. We cannot hold, as a matter of law, that a person of ordinary prudence should have apprehended the possibility of danger from some vehicle, driven in violation of traffic regulations, side-swiping the street car.
In Georgetown, etc., R. Co. v. Smith, 25 App. D. C. 259 (5 L. R. A. [N. S.] 274), it was stated:
“When passengers upon railroads operated by steam have received injuries by reason of the protrusion of their arms out of open windows, the courts, in considering such cases, have differed as to whether such protrusion is, as matter of law, contributory negligence. There has also been some conflict of decisions when the injured persons have been passengers upon street cars, but the weight of authority is that the question of negligence is a question of fact for the jury, and not a question of law to be ruled upon by the court.”
In Seigel v. Eisen, 41 Cal. 109, the plaintiff, while standing on the rear platform of a street car, with his hand on the railing, had his hand hurt by a wheel of defendant’s dray as it passed the rear of the car, and the court held that plaintiff’s contributory negligence, if any, was a question for the jury.
In Cummings v. Railroad Co., 68 Kan. 218 (74 Pac. 1104, 1 Ann. Cas. 708), a passenger on a summer street car leaned his head out of the car to hear what was said by another passenger two seats ahead and was struck by a trolley pole, and it was held the question of contributory negligence was one of fact for the jury.
In Gage v. Transit Co., 211 Mo. 139 (109 S. W. 13), it was held:
“It is the well-settled law of this State, and elsewhere, that it is not negligence, as a matter of law, for a passenger on a street car to protrude a portion of his body out of the car in which he is being carried, but such question is one of fact to be determined by the jury, under proper instructions from the court; the test being, whether or not the ordinarily prudent person would do the same act under the same or like circumstances.”
The same rule was applied in Gardner v. Railway Co., 223 Mo. 389 (122 S. W. 1068, 18 Ann. Cas. 1166).
The question whether the plaintiff was guilty of negligence contributing to his- injury was one of fact, and in determining that question the manner in which he was sitting, the position of .his arm, the risk, if any, such position necessarily exposed him to under ordinary conditions, which might reasonably be expected to exist, were to be considered by the jury; but the question was not one of law, to be determined'by the court. Pell v. Railroad Co., 238 Ill. 510 (87 N. E. 542); Elliott v. Railway Co., 18 R. I. 707 (28 Atl. 338, 31 Atl. 694, 23 L. R. A. 208); Dahlberg v. Railway Co., 32 Minn. 404 (21 N. W. 545, 50 Am. Rep. 585); Francis v. N. Y. Steam Co., 114 N. Y. 380 (21 N. E. 988); Tucker v. Railway Co., 53 App. Div. 571 (65 N. Y. Supp. 989); affirmed 169 N. Y. 589 (62 N. E. 1101).
We have examined the case of Terminal Co. v. Hancock, 75 Ohio St. 88 (78 N. E. 964, 6 L. R. A. [N. S.] 997, 8 Ann. Cas. 1036, 116 Am. St. Rep. 710), where it was held:
“It is negligence as matter of law for a passenger traveling on a rapidly moving railroad car to intentionally and needlessly project his arm or a part thereof out of the window of the car.”
The court there applied to passengers upon street railways the rule of negligence adopted by some courts with reference to passengers on steam railroads. We have examined the authorities with reference to passengers upon steam railroads and find a great diversity of opinion, not only in the cases but also in the text books. We do not undertake in this case to determine what would be negligence on the part of a passenger on a steam railroad car but confine ourselves to the question of negligence on the part of a passenger on a street car. We decline to adopt any arbitrary rule relative to the position a passenger on a street car may reasonably be allowed to assume. We are not prepared to say that to protrude an arm to some extent outside the window of a street car is always and under all circumstances negligence, but feel that each case must stand upon its own facts; and what is, or is not, ordinary prudence, as to the position which one shall assume when sitting at the open window of a street car, is one of fact for the jury. The question of plaintiff’s contributory negligence was properly submitted to the jury.
The judgment is affirmed, with costs to plaintiff.
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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Wiest, J.
Plaintiffs owned a flat building in the city of Chicago, and, feeling the urge of “back to the soil,” desired to exchange the property for a farm. Defendant John Soumar owned an 89-acre farm in Ottawa county, this State, and had it listed with defendant Frank J. Grill, a real estate agent in Chicago, to sell or exchange. Through negotiations conducted by Mr. Grill, and after he had examined plaintiffs’ property and plaintiffs, accompanied by Mr. Grill, had visited and examined the Ottawa county farm, an exchange was made August 1, 1918. Plaintiffs received the farm and gave Mr. Soumar a $2,000 mortgage thereon, and defendant Soumar received the Chicago property subject to a $4,000 mortgage thereon. Defendant Soumar, on August 14, 1918, conveyed the Chicago property to Frank Adamek, who sold it on February 28, 1920, to Elsie Krecek, who sold it to Alex Matzkanin. Plaintiffs took possession of the farm August 1, 1918, and discovered that Mr. Grill’s representations in regard to the value of the farm and the fertility and character of the soil and the crops it would grow and the income it would provide, were all false in fact. The plaintiffs found the farm was mostly blow sand and irreclaimable swamp and “then the eyes of them both were opened,” and they knew they had been defrauded.
Plaintiffs affirmed the exchange and filed the bill herein to have a cancellation of the $2,000 mortgage given to defendant Soumar, claiming that in equity and good conscience it should be done in satisfaction of the misrepresentations made and the fraud accomplished thereby, and also asked for additional damages. Defendants Soumar and Grill denied the fraud alleged and asked for the dismissal of the bill. The defendant Rolnicze does not appear to have been concerned in the fraud, and was dropped in the consideration of the case, and in speaking of defendants in this opinion we refer to Soumar and Grill.
At the hearing the trial judge found defendants Soumar and Grill guilty of the fraud charged, and by interlocutory decree ordered:
“That the defendants, within thirty days from this date, reconvey to the plaintiffs the property in Chicago, received in exchange for the farm mentioned in the bill of complaint, and the plaintiffs thereupon reconvey said farm and the personal property received in the exchange, to the defendant, John Soumar; that in such case, an accounting may be had as to any payments, improvements, profits or losses because of the reconveyances, and that the deed of the Chicago property be deposited with the county clerk of Ottawa county, Michigan, to be delivered to the plaintiffs upon their depositing a deed of the farm and a bill of sale of the personal property to said John Soumar with said county clerk.
“It is further ordered, adjudged and decreed that in default of the defendants making such reconveyance and depositing the deed with the county clerk to be delivered to plaintiffs, as aforesaid, then that the mortgage of two thousand (2,000) dollars, given by the plaintiffs upon said farm, will be canceled and held for naught, and the said plaintiffs will hold said farm free and clear of said incumbrance.”
Another decree was entered based upon a finding that defendants had failed to deliver the deed. This decree set aside, vacated and declared null and void the $2,000 mortgage, and directed defendants to deliver up the mortgage.
The mortgage on the farm was assigned by defendant Soumar to defendant Grill on August 14, 1918, and the decree set aside, vacated and declared such assignment void as against the plaintiffs and directed defendant Grill to deliver up the assignment. This mortgage included $200 loaned by Mr. Grill to plaintiffs.
Later the court made another decree ordering that:
“Plaintiffs be permitted to amend their bill of complaint so as to conform to the theory of rescission and submit proofs covering their damages as to such rescission. * * * The defendants may answer such amendment. * * * That the plaintiffs file the deed and bill of sale specified in the original findings, within thirty days from the date of this interlocutory decree, and in default of the plaintiffs filing the deed and bill of sale with the clerk! of this court within said thirty days, that the bill of complaint in this cause be dismissed, and the deed deposited by Frank J. Grill will be returned to him. * * * That both of said deeds will be subject to the incumbrances on the property at the time of the exchange of the properties, and the deed and bill of sale to be delivered by plaintiffs shall convey the property to Frank J. Grill. All conveyances to be held by the county clerk until the final decree herein.”
March 28, 1921, another decree was entered finding defendants guilty of the fraud alleged in the bill, and decreed reconveyance by defendants to plaintiffs of the Chicago property and a conveyance of the farm and personal property by plaintiffs to defendant Soumar, and directed an accounting as to payments, improvements, profits or losses. The decree also provided for the cancellation of the $2,000 mortgage on the farm if defendants made default in depositing the deed to the Chicago property. The decree also provided that plaintiffs deed the farm to defendant Grill within 30 days and allowed plaintiffs certain items for the rental value of the Chicago building and improvements made upon the farm, and deducted therefrom the rental value of the farm and the interest due and found there was due from defendants to plaintiffs the sum of $720.50.
Plaintiffs amended their bill so as to ask for rescission but did so under protest by incorporating in the amendment the following:
“These plaintiffs, saving and reserving to themselves and without waiving the objections that the bill of complaint filed in this cause, was on the theory of affirmance of the contract, and the prayer of the said bill being in conformity to these averments and not wishing to rescind the said contract, but still desire to affirm and receive damages in accordance with such affirmance and in no manner wishing to be prejudiced by the filing of this amendment done in conformity with the interlocutory decree filed in this cause, and for that purpose only make the following amendment to said bill of complaint.”
Plaintiffs and defendants appeal. The plaintiffs insist they have a right to be granted relief in accord anee with their affirmance of the exchange. Defendants insist the bill should have been dismissed.
An examination of the record fully persuades us that the fraud complained of was practiced upon the plaintiffs through the false representations of defendant Grill. That being true, plaintiffs had a right upon discovery of such fraud to affirm the contract and to call the defendants to account for the fraud practiced upon them, and have the mortgage given by plaintiffs upon the farm canceled if their damages sustained reached the amount of the mortgage.
May the trial court, in a case where the plaintiffs claim and establish the fact that they have been defrauded by defendants in an exchange of property, and have affirmed the contract and elected to keep the property received in the exchange, and where the defendants ask no affirmative relief, compel the plaintiffs to rescind against their desire to do so? When the court found defendants guilty of the fraud charged, they were cast thereby to respond for the wrong they had committed. The court having found the fraud practiced upon plaintiffs in the exchange, the plaintiffs were thereby clearly entitled to have relief in accordance with their election to affirm the contract of exchange. There may be instances where, in order to do justice between the parties, the court may direct a return to the former status, even though the party complaining affirms, but this is not such a case. Plaintiffs had a clear right to retain the farm. The Chicago property had passed through several hands, had been neglected and could not be returned.in the condition it was at the time of the exchange, and was no longer owned by Mr. Soumar. Defendant Grill, being the party who made the fraudulent representations, could not become an innocent purchaser of the mortgage growing out of the very fraud he practiced. It is difficult to reach a conclu sion as to the exact loss occasioned plaintiffs by the fraud practiced upon them. It is clear, however, that the financial injury equals the amount of the mortgage upon the farm. Plaintiffs had a right, notwithstanding the fraud, to affirm the contract and ask that the mortgage, the fruit of such fraud, be canceled. Smith v. Werkheiser, 152 Mich. 177 (15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406).
In a case where the plaintiffs have been defrauded and an obligation, a part of the fruit of the fraud, is in the hands of the one practicing the fraud, and the plaintiffs affirm the contract, and seek relief from the fraud practiced, by way of having such obligation canceled in satisfaction of the wrong done, and the defendants ask that the bill be dismissed, but do not ask for rescission or any affirmative relief, the court should grant relief in accordance with the rule of law governing in cases of affirmance of contracts voidable for fraud.
We have considered the value of plaintiffs’ equity in the Chicago property, and the value of the farm and personal property thereon, at the time of the exchange, and we are of the opinion that the court below was right in entering the decree discharging the mortgage. The subsequent decrees in the court below changing the relief granted plaintiffs are reversed, and a decree will be entered in this court directing the defendant Grill to discharge the $2,000 mortgage upon the farm and surrender to plaintiffs the mortgage note within 20 days, and upon his failure to do so the decree of this court to operate as such discharge and the same may be recorded. Plaintiffs will recover their costs against the defendants Sournar and Grill.
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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Wiest, J.
Defendant company insured plaintiff’s automobile against “theft, robbery or pilferage, excepting by any person or persons in the assured’s household or in the assured’s service or employment, whether the theft, robbery or pilferage occur during hours of such service or employment or not.” Plaintiff loaned the car to one Jerry Monaghan, a former employee, for a half hour, to drive to the St. Dennis hotel in Detroit, and the car not being returned as agreed, he tried to locate it, and not being able to do so reported to the police that his car had been stolen. Later in the day the car was found in a badly damaged condition at the corner of Grand River avenue and Fourth street in Detroit. There was testimony that Monaghan drove the car to the hotel and there met some companions, started drinking, took his companions in the car and drove about the city and came back to the hotel and started drinking again and became so drunk that he was carried to his room. Monaghan testified that he left the car in front of the hotel and that he had the keys to the car in his pocket when he was taken to his room, but the keys were gone when he awakened and that he had not given the keys to any one, and had not given any one permission to take the ear. He testified that he knew who took the car but would not tell their names. Plaintiff had the car repaired and brought this suit to recover the expense thereof and obtained judgment.
Defendant contends that plaintiff made no proof of loss in accordance with the terms of the policy, while plaintiff insists he was excused from doing so by the denial of liability by defendant’s adjuster.
The policy provided:
“In the event of loss or damage the assured shall forthwith give notice thereof in writing to this company or the authorized agent who issued this policy.”
Plaintiff testified:
“I notified the insurance company in writing of the car being stolen. * * * I had some discussion relative to the paying of this loss with Mr. Dinning, an adjuster for the St. Paul Fire & Marine Insurance Company, Leonard & Griffin, of whom I bought the insurance. A man from their office went over with me to see Mr. Dinning. I went up to Mr. Dinning’s office and asked him what they were going to do about this car, and he said they were not going to do anything, that it wasn’t a stolen car. I don’t recall the date of this conversation, but it was within a few days after the accident. Mr. Dinning never saw the car to my knowledge, but he said there wasn’t any claim at all, that the car wasn’t a stolen car.”
Defendant claims that the testimony failed to establish the agency of Mr. Dinning and cites Fish v. Insurance Co., 198 Mich. 270. It is a sufficient answer to this to say that the notice to the agents who issued the policy to plaintiff made it unnecessary for him to go to an adjuster with his claim of loss, and when he did go to see the adjuster he was accompanied by a man from the office of defendant’s agents and he had a right to consider, under such circumstances, the denial of his claim as excusing him from proving his loss.
It is also urged that there was no evidence tending to prove a theft and that the car may have bs¡en taken without intent to steal it but with intent to return it, and it was upon plaintiff to offer evidence establishing an intent to steal the car on the part of the person taking it.
“It is true, as is contended, that an essential ingredient in the crime of larceny is the existence at the time of the taking of a felonious intent to deprive the owner of his property against his will, yet whether or not such an intent existed is a question for the determination of the court or jury trying the cause. If there is evidence from which such an intent can fairly be inferred, an appellate court is not authorized to disturb a finding that such an intent existed.” Robinson v. State, 113 Ind. 510 (16 N. E. 184).
“The felonious intent was a question of fact for the jury, to be inferred by them from all the facts and circumstances disclosed by the testimony.” People v. Griffin, 77 Mich. 585.
It was not incumbent upon plaintiff to negative conjectural defenses on the part of the person who took the automobile. It was sufficient for him to offer evidence from which the jury could reasonably infer a theft of the car.
We quote with approval, as the supreme court of New Jersey did in State v. South, 28 N. J. Law, 28 (75 Am. Dec. 250), the following statement of the law upon the question of intent found in a well-considered note by Judge Sharswood, in the case of The Queen v. Holloway, 1 Denison’s C. C. 370, 376:
“It seems to be settled law that every wrongful taking, without any color of right, with intent to deprive the owner wholly of his property, is larceny, whatever other motive may also have influenced the taker; and that no wrongful taking will amount to larceny which is not done with such intent. The question for the jury in each case will be whether the facts prove such intent.
“If it appear that the prisoner kept the goods as his own until his apprehension, or that he gave them away, or sold or exchanged or destroyed them, such intent may, generally speaking, be deemed proved. * * * If, on the other hand the prisoner took the goods with a view only to a.temporary user, intending to keep them for a short time only, and to return them to the owner unimpaired, an intent thereby wholly to deprive the owner cannot, generally speaking, be deemed proved. * * * But if he took them with a view only to a temporary user, intending, however, to keep them for a very unreasonable time, or to use them in a reckless, wanton or injurious manner, and then to leave it to mere chance whether the owner ever recovered them or no, and if he recovered them at all, would probably recover them in a damaged or altered condition, such a taking would seem, in common sense, to be ample evidence of an intent wholly to .deprive the owner of his property,”
In State v. South, supra, the court remarked:
““The fact of the taking being merely for temporary "use seems, therefore, not of itself to be inconsistent with an intent wholly to deprive the owner of his property, and therefore does; not seem necessarily to negative the felony, but simply to be a piece of evidence which the jury may regard as showing a taking from wantonness, mistake, accident, frolic, or thievish design, according to circumstances.”
Our attention is called by counsel for defendant to the case of Hartford Fire Ins. Co. v. Wimbish, 12 Ga. App. 712 (78 S. E. 265), and it is said that it is similar .to the case at bar. It is. It affords, however, cold comfort to defendant for it was there held that the question of intent to steal should have, been submitted to the jury. Other cases cited require but brief mention.
In Michigan Commercial Ins. Co. v. Wills, 57 Ind. App. 256 (106 N. E. 725), the testimony affirmatively showed that the car was taken by a boy for a “joy ride” and without intent to steal. The same is true, in effect, of Valley Mercantile Co. v. Insurance Co., 49 Mont. 430 (143 Pac. 559, L. R. A. 1915B, 327, Ann. Cas. 1916A, 1126). In Rush v. Insurance Co., 150 N. Y. Supp. 457, the car was taken under claim of.title. In Stuht v. Insurance Co., 90 Wash. 576 (156 Pac. 557), the car was misused by one having lawful possession. The question of intent to steal was submitted to the jury under proper instructions, and under the evidence cannot be disturbed.
We find no error, and the judgment is affirmed, with costs to plaintiff.
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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] |
Clark, J.
Action for personal injuries. Defendant with its plea gave notice of settlement of the claim, that defendant had paid plaintiff $115, and had paid her doctor’s bill, which had been accepted by plaintiff in full satisfaction and discharge of liability and that she had signed a release accordingly. Plaintiff claimed a continuing injury and disability following the accident. After plaintiff had consulted a physician a number of times and after he had declined to express an opinion of when she would be able to return to work, she was approached by a claim agent of defendant with whom the settlement was negotiated. Plaintiff testified:
“Q. tie didn’t wait for you to come down to their office?
“A. No, that was why I was so surprised that last time he came, he came the afternoon of the day that I had been looking for Dr. Reel, and Dr. Reel hadn’t been there.
“Q. He hadn’t been there yet?
“A. No.
“Q. That was the day—
“A. That I made the settlement with them.
“Q. Claimed that the settlement was made?
“A. Yes.
“Q. What time of the day did Mr. Kerwin get there ?
“A. Along in the afternoon, 3 or 4 o’clock, some where about that time.
“Q. Tell the jury about what he first said, if you will?
“A. Why, he just asked after my condition. I told him I hadn’t been able to get out at all, and I said Dr. Beel is coming today to make reservation for me over to the hospital.
“Q. In that connection, anything said about your condition by yourself, how you were getting along?
“A. I said I wasn’t getting along, and hadn’t been able to do anything, and hadn’t even been able to do little light sewing in my own room.
“Q, And then what else was said? What did you say: about Dr. Beel coming?
“A. I said Dr. Beel was coming and he was going to make reservation for me over to the hospital, and I said, I don’t want to settle with you until after I have talked with Dr. Beel.
“Q. Did you tell him why you wanted to talk to the doctor?
“A. Yes, I wanted to find out how long before I could go to work, because I couldn’t — I hadn’t no other way of living only to go to work.
“Q. Did you tell him that?
“A. Yes, I told him that, and he says, T have seen Dr. Beel, and he says that you will be able to go to work in a few days.’
“Q. Then what else did he say?
“A. And he said there wasn’t any use in dragging it out as he could see any longer, that Dr. Beel assured him that I would be able to go to work.
“Q. When?
“A. In a few days. He said, now, if we put this two weeks ahead, by that time you surely will be able to go to work, and I said, if Dr. Beel has told you that, Dr. Beel hadn’t come as he agreed to, that was the trouble, you know; he was to have come that day, but he hadn’t come, and in his place Mr. Kerwin came and stated that he had seen Dr. Beel, and as long as Dr. Beel hadn’t come and he did and said that, why, what was I to think, except it was the truth; I believed it.
“Q. All right. Then what did you say after he told you that he had talked to Dr. Beel and you would be all right in a few days?
A. I said if Dr. Beel was sure of that, I had just as soon straighten with him right then as any other time, only I must know that I was able to go to work in a few days.
“Q. Then what did he say?
"A. And he said he had — he repeated it — that he had seen Dr. Beel, and so on, the same thing over again.
“Q. Then what took place?
“A. And I signed his paper.”
In discussing, on a motion for judgment notwithstanding the verdict, whether there was a question for the jury that the settlement and release had been obtained by fraud and misrepresentation, the trial judge said, in speaking of the testimony quoted, and of other similar testimony:
“If this was the only testimony in the ease, it would be a question for the jury, but it is claimed by defendant that in view of her cross-examination, that she did not believe Dr. Beel made such statement,” etc.
And the judge then reviewed the testimony of plaintiff in which she made statements in conflict with her testimony quoted. Defendant made a motion for a directed verdict. It was denied without any statement that decision thereon was reserved. See section 14568, 3 Comp. Laws 1915. The case went to the jury, who returned a verdict for plaintiff. The verdict was recorded, but judgment was not entered. There was a- stay for the purpose of moving for a judgment notwithstanding the verdict. The motion was made and heard, and judgment for the defendant was entered. Plaintiff brings error.
The denial of the motion for a directed verdict without a statement or indication that the question was reserved under the statute is not conclusive. Such denial must be treated here as merely for orderly proceeding. The entry of the verdict without judgment thereon, with a stay to permit a motion for judgment notwithstanding the verdict, indicates sufficiently that the judge reserved final decision of the question. The cases of Wulff v. Bossler, 199 Mich. 70, and Y erkes v. Antrim Circuit Judge, 200 Mich. 443, are not in point, for in both of them judgment had been entered upon the verdict before the motions under said statute were made.
The court erred in ordering judgment for defendant. It was not for the court to say which of plaintiff’s versions of the settlement was to be believed. On such motion the evidence must be viewed in the light most favorable to plaintiff, and when so viewed, her evidence on direct-examination, and much of what she said on cross-examination, supports her claim of fraud and misrepresentation. Her testimony, though conflicting, made an issue for the jury. Parnell v. Pungs, 190 Mich. 638, and cases there cited; Bertha v. Regal Motor Car Co., 180 Mich. 51; Marple v. Railroad Co., 115 Minn. 262 (132 N. W. 333).
The case of Radford v. Gaukler, 196 Mich. 94, is distinguishable, for the majority opinion states, * * *
“that, if it can be said the issue was for the jury, the verdict, nevertheless, should have been set aside upon motion, as opposed to the weight of the evidence. A new trial should be granted.”
Here there was no motion for a new trial, and the question of the verdict’s being against the great weight of the evidence is not before us.
Judgment reversed. The cause is remanded with directions to enter judgment upon the verdict as' rendered.
Fellows, C. J., and Wiest, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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] |
Steere, J.
At about 9 o’clock in the evening of January 31, 1918, plaintiff’s husband was run over and fatally injured by an automobile while standing in a safety zone on Gratiot avenue in the city of Detroit just east of Riopelle street on the north side of the Gratiot avenue car tracks waiting to take a street car. The automobile was recklessly driven at an excessive speed of over 25 miles an hour directly across the well defined safety zone near the middle of which deceased stood, knocking him down with its left front fender, both the left front and rear wheels passing over his body. After striking him the driver of the automobile sped on, ignoring signals and other attempts of bystanders to stop him, disappearing down the street at increasing speed. Two young men standing close by barely escaped being struck by the car. One was a salesman for the Detroit Screw Works and the other a student at the Cass technical high school. Both caught the license number of the car, 29,238, which was given to a patrolman who came to the scene of the accident. He made the customary investigation, took the names of witnesses and turned in a report of the accident with the number of the car, which a witness had identified as a Dodge, when he went off duty that night. In the confusion of the accident and rapid passing of the car none of the witnesses saw the man sitting within and driving it sufficiently plain to identify him.
Four days before the inquest on deceased the police authorities had found a Dodge automobile bearing li cense number 29,238 at 1565 Mack avenue where a tin shop was located called the Garland Tin Shop. The business conducted there was then incorporated. Defendant was its president, his wife secretary and treasurer and his brother vice-president, the three constituting the incorporators. Defendant resided in rooms over the tin shop. The license for the car found there was issued to the Garland Tin Shop Corporation, application therefor having been signed and verified by defendant. He was accustomed to drive this car and admitted he was out with it alone the night of the accident and drove it down town, but denied he went by Gratiot avenue and claimed to have been in another part of the city when the accident is said to have occurred. The car was later taken to the police station and seen by several witnesses who were not permitted by the court to testify to the condition of its left front fender, claimed by the plaintiff to have been bent or dented.
At conclusion of the testimony the trial court directed a verdict for defendant, saying in part: ¡
—“the only showing made by the plaintiff to connect Mr. Froehlich with the driving of this car is the connection with the car in the neighborhood of 7:30 at the corner oi* Canfield and Sheridan and again at 10:30 driving down town by a different route from Gratiot avenue. * * * there is no evidence in this case from which you would be warranted in finding that he was actually driving the car.”
Plaintiff’s only assignment of error is directed against this disposition of the case by the court.
Plaintiff’s evidence of the identity of the tort feasor responsible for this fatal accident was necessarily circumstantial. Circumstantial evidence in support of or against a proposition is equally competent with direct. As against each other their relative convincing power is for the jury. The trial court apparently assumed that defendant’s direct denial must be taken as true, against all circumstantial evidence introduced.
“To hold that in all cases when a witness swears to a certain fact the court must instruct the jury to accept that statement as proven, would be to establish a dangerous rule. Witnesses sometimes are mistaken and sometimes unfortunately are wilfully mendacious. The administration of justice does not require the establishment of a rule which compels the jury to accept as absolute verity every uncontradicted statement a witness may make.” Yonkus v. McKay, 186 Mich. 203, 210 (Ann. Cas. 1917E, 458); citing Woodin v. Durfee, 46 Mich. 424.
The undisputed testimony in this case shows that the Dodge auto which struck and killed deceased was driven at an unlawful and reckless rate of speed in a grossly negligent manner directly across the safety zone on which prospective passengers were awaiting the coming of a street car. It bore a Michigan license for the year 1918 numbered 29,238. The Dodge car entitled to and actually bearing that number on the night in question was in the custody of and being driven by defendant. It was taken out of the garage where he lived by him early in the evening and by him safely returned late that night to the place from which he took it. He drove it around town and down town and parked it for a time at Cadillac square, as he said was his custom when he came down town. He first drove it shortly after supper to his brother’s home at the corner of Elba and Mt. Elliott streets and from there, as he finally orientated himself after some evasion, he drove to visit a young lady living in a flat at the southwest corner of Canfield and Sheridan streets where he timed his arrival as between half-past 7 and 8 o’clock. Why he went there or how long he remained he does not make clear but he gives his next move from there to Cadillac square, where he parked his car at about 11 o’clock, he thought. At each of these places on resuming his journey he found his car where he left it, undisturbed so far as he knew. There is absolutely no evidence that any one but himself drove or touched his car that evening from the time he left home shortly after supper until he returned with it about midnight, beyond his statement that he did not drive it down Gratiot avenue where the accident occurred that evening. The young woman he claimed to be visiting about the time of the accident was not produced as a witness. The most direct route either from his own home, the home of his brother, or the flats where he visited the young lady, to Cadillac square, where he testified he last parked his car, was by Gratiot avenue past the spot where deceased was killed. He had driven an automobile around Detroit for four years and was familiar with its thoroughfares. His reasons for taking a different route and account of his whereabouts during .that evening were in certain respects evasive and at times conflicting. There was ample circumstantial evidence from which the jury in balancing probabilities might fairly conclude that he was the driver of the car which caused the accident. His testimony, backed by an impelling motive, was not so consistent, clear and convincing that the jury was bound to accept it in its entirety as conclusive proof. It was for them and not the court to pass upon his credibility.
The judgment is reversed, with costs to plaintiff and a new trial granted.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Moore, JJ., concurred.
' The late Justice Stone took no part in this decision. | [
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Sawyer, J.
In this case, we must resolve whether a claim that seeks to impose liability on a limited partner of a limited partnership organized under foreign law must be resolved by applying Michigan law or the law of the foreign jurisdiction. We hold that, without regard to the underlying basis for the claim of liability, the law of the jurisdiction under which the partnership is organized controls the resolution of the issue of liability.
This case arises out of a commercial real estate transaction involving multiple related entities. Defendant ART Midwest, LP (the Limited Partnership), is a limited partnership organized under the laws of the state of Texas. Defendant American Realty Trust, Inc. (defendant), is a limited partner in that partnership. The Limited Partnership is the sole member of a limited liability company, ART Concord East, LLC (the LLC). The LLC, which is not a party to this action, purchased an apartment complex. In doing so, it assumed responsibility for a multimillion dollar loan owed to plaintiff. Additionally, as part of the transaction, the Limited Partnership guaranteed payment of the debt.
Subsequently, the loan went into default and the Limited Partnership failed to pay under the guarantee. That precipitated the instant action, which includes a claim against defendant in which plaintiff alleged that defendant was a mere alter ego of the Limited Partnership and, therefore, should be held liable for the debt. The parties brought cross-motions for summary disposition. The primary issue resolved below was whether a claim of alter ego or piercing the veil required the showing of a fraud or wrong. Plaintiff argued that no such showing was required. Defendant, on the other hand, argued that such a showing was required. Additionally, defendant argued that, because plaintiff sought to impose liability on a limited partner of a partnership formed under Texas law, Texas law controlled and would not impose liability in this case. The trial court rejected the application of Texas law, but did hold that Michigan law required a showing of fraud or other wrongdoing and granted summary disposition in favor of defendant on this claim.
We granted plaintiffs application for leave to appeal.
We decline to address the issue raised by plaintiff: whether the trial court erred in holding that Michigan law requires the showing of a fraud or wrong and that no such showing was made in this case. Rather, we agree with defendant that this matter must be resolved under Texas law, not Michigan law.
MCL 449.1901 provides in pertinent part that “the laws of the state under which a foreign limited partnership is organized govern its organization and internal affairs and the liability of its limited partners.” The trial court rejected the argument that this statute requires that this case be resolved under Texas law because it involves a claim under an alter ego theory:
The Court agrees with the plaintiff that if the defendants were being sued as limited partners of the Texas limited partnership, their liability as limited partners would be determined by the Texas statutes governing limited partnerships. The defendants are not being sued as limited partners but under an alter ego theory. Since this claim does not relate to the lawful organization of the limited partnership, but is more akin to a business tort, application of Texas law is not required. Accordingly, the Court need not address whether the defendant’s argument that the plaintiff failed to allege fraud [is] necessary for an alter ego claim under Texas law.
We disagree with the trial court.
Questions of statutory construction are reviewed de novo. Where the statute is clear and unambiguous, the statute is to be enforced as written without the need for further interpretation. MCL 449.1901 is clear and unambiguous. The liability of limited partners is to be determined by the laws of the state under which the partnership is organized. The statute draws no distinction based on the theory upon which liability is to be imposed. This case involves a question regarding the liability to be imposed on a limited partner. The partnership was formed under Texas law. Therefore, Texas law controls the determination of the limited partner’s liability.
Defendant goes on to suggest that we should affirm the trial court on the basis that, in light of the proper application of Texas law, defendant was still entitled to summary disposition. While that may very well be true, we decline to resolve the issue whether Texas law favors defendant’s position because the trial court did not rule on the substantive application of Texas law to this issue. The trial court should be provided the initial opportunity to apply Texas law and determine whether defendant is entitled to summary disposition.
Accordingly, we reverse the trial court’s grant of summary disposition in favor of defendant and remand the matter to the trial court to reconsider the grant of summary disposition in light of this opinion and in light of the applicable Texas law. We do not retain jurisdiction. No costs, neither party having prevailed in full.
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002).
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Jansen, J.
Defendant, David Kircher, appeals by right the circuit court’s order confirming the judicial sale of his property, commonly known as the Eastern Highlands apartment complex (Eastern Highlands), to receiver Robert Barnes. Defendant contends that the circuit court erred by granting the receiver a lien against Eastern Highlands, by allowing the receiver to foreclose that lien, and by confirming the subsequent judicial sale of Eastern Highlands to the receiver. In addition, defendant contends (1) that the circuit court erred by determining in the first instance that there were nuisances in need of abatement at'Eastern Highlands, (2) that the circuit court unconstitutionally seized his private property without just compensation, (3) that the circuit court erred by appointing a receiver to abate the alleged nuisances, (4) that even if the receiver’s appointment was proper, the circuit court nonetheless erred by approving several excessive and unnecessary expenditures by the receiver, (5) that the circuit court erred by granting attorney fees for plaintiff, and (6) that defendant’s continued dispossession after the termination of the receivership constituted an additional unconstitutional taking of private property. We affirm in part, vacate in part, and remand this matter for further proceedings consistent with this opinion.
I
On or about October 13, 2004, Washtenaw County authorities discovered that there had been a sewage backup at Eastern Highlands and that defendant or his agents were pumping raw sewage from a containment area into a storm drain or catch basin that eventually led to the Huron River. After being contacted by the authorities, plaintiff sent its building director and plumbing inspector to Eastern Highlands on October 14, 2004. Plaintiffs officials informed defendant that his sewage-pumping operation was illegal, but it does not appear that defendant immediately stopped the pumping.
Plaintiff filed a complaint and emergency petition on October 15, 2004, seeking a temporary restraining order to enjoin defendant from pumping the sewage and requesting an order to show cause why Eastern Highlands should not be condemned and declared a public nuisance. With the complaint, plaintiff filed the affidavit of its building director, Ronald Fulton, in which Fulton averred that irreparable harm would result if the court did not enjoin defendant’s sewage-pumping operation. Later that day, the circuit court entered an ex parte temporary restraining order, enjoining defendant from pumping raw sewage and permitting plaintiff to enter the premises and abate any immediate dangers.
In response to the temporary restraining order, defendant shut off all water service to the tenants of Eastern Highlands. Plaintiff therefore filed an emergency motion seeking an ex parte order requiring defendant to restore water service to his tenants. On October 16, 2004, the circuit court entered an ex parte order requiring defendant to immediately restore water service to the tenants of Eastern Highlands and permitting plaintiff to abate any additional dangers that might arise “in the event the restoration of water service . . . results in the threat of new sewage discharge . . . A hearing was set for October 20, 2004.
At the October 20, 2004, hearing, several witnesses testified concerning the nature, extent, and severity of defendant’s sewage discharge. Defendant admitted that he had been aware that his employees were pumping raw sewage into a storm drain or catch basin and acknowledged that he was the sole owner of Eastern Highlands. Upon conclusion of the hearing, the court ruled:
[T]he conduct of Defendants David Kircher and Eastern Highlands in fading to provide adequate sanitary sewage discharge facilities and discharging raw sewage into a storm drain, located on or near its property, which storm drain empties into the Huron River, constitutes an immediate clear and present danger to the health, safety, and welfare, of not only the residents of Defendants’ apartments, but to the public at large.
The circuit court declared Eastern Highlands a public nuisance and directed plaintiff to take all reasonable steps to abate the nuisance caused by the sewage backup and defendant’s sewage-pumping operation. Among other things, the court permitted plaintiff to inspect “all common areas, storage rooms, maintenance rooms, power plants, unoccupied apartment units, and occupied units with permission of [the] occupants, for contamination,” to oversee “the immediate cleanup of any and all unsanitary conditions,” to evacuate any areas or units in which “the contamination constitutes an immediate health hazard to the occupants,” and to “prohibit further occupancy of the [a]ffected units or buildings until the health hazard has been removed.” The court ordered defendant “to pay Plaintiff its costs and attorney’s fees . . . incurred in bringing and enforc ing this matter, subject to Court review of the reasonableness thereof” and noted that it would “[c]onsider ordering the appointment of a receiver for the property” if defendant did not comply with the terms of the order.
On October 26, 2004, plaintiff filed an amended complaint, adding a count entitled “Public Nuisance, Fire, and Property Maintenance Code Violations.” Plaintiff alleged that a fire had occurred in Building M at Eastern Highlands on October 22, 2004, and that firefighters had discovered several fire code violations at the premises, including the absence of smoke detectors and fire extinguishers and the absence of an operational fire hydrant on the premises. Plaintiff also alleged that its officials had inspected Eastern Highlands and had discovered numerous property maintenance code violations in several of the buildings and the common areas. Among other things, these alleged property maintenance code violations included inoperable doors, improper or broken doorjambs, inoperable thermostats, walls that were not caulked and that had separated from the abutting structure, leaking faucets, a bathtub that was not properly caulked, toilets that were broken or not properly attached to the floor, many doors and windows that were not weathertight, an improperly installed heater cover, holes in the drywall, a loose window that posed a danger of falling, trash and garbage strewn throughout the hallways, deteriorated roof shingles, missing roof flashing, numerous missing doors and windows, the presence of rodents and insect pests, defective stairways and handrails, inoperable locks, unsafe sidewalks and parking areas, exposed electrical wiring, disconnected vents in the laundry room, and washing machines that drained onto the floor.
Plaintiff set forth specific citations of its property maintenance code for each of these alleged violations. Plaintiff also attached a diagram showing the exact location of each of the alleged violations. Plaintiff requested that the circuit court (1) “[djeclare the subject property a public nuisance” because of violations of the Ypsilanti Charter Township fire code and property maintenance code, (2) “[o]rder the nuisance abated,” (3) order the immediate installation of smoke detectors and fire extinguishers, (4) grant plaintiff the authority to enter and reinspect all interior and exterior areas of Eastern Highlands to ensure compliance with the applicable fire and property maintenance codes, (5) order defendant to pay plaintiff “all costs and attorney’s fees incurred by [plaintiff] in the enforcement” of the fire and property maintenance codes, and (6) “in the event Defendants fail or refuse to pay such costs, allow [plaintiff] a Judicial Lien in the full amount of its expenses incurred, plus interest, which Judicial Lien may be filed with the Washtenaw County Register of Deeds and be foreclosed .. . .”
The same day, the circuit court entered an order directing defendant to appear at a hearing to show cause why the court “should not enter an Order declaring the property ... [a] public nuisance” for the reasons stated in plaintiffs amended complaint. At the hearing, plaintiffs counsel presented a prepared order and remarked that he and defendant had agreed to its terms. Defendant agreed with the language of the proposed order as it related to the alleged fire code violations and acknowledged that the fire code applied equally to the occupied and unoccupied apartment units at Eastern Highlands. Defendant also indicated that he “would have no problem” with the portion of the proposed order that dealt with violations of the property maintenance code “as long as it refers to occupied units----” Defendant apparently did not believe that the property maintenance code applied to unoccupied units and indicated that he was “not sure that the Property Maintenance Code requires all units in every building ... to be ready for occupancy at all times even if [the units are] not for rent.” He again conceded, however, that the fire code applied to occupied and unoccupied units alike, and also acknowledged that he had “no problem” with the proposed order as it related to “major violations” that affect the safety and integrity of the structure. Defendant indicated that he would agree to the proposed order as long as he could retain the right to object in the future to any of the alleged property maintenance code violations. Plaintiffs counsel agreed to this.
Following the hearing, the circuit court issued the proposed order, which was entitled “Order to Abate Nuisance.” The order declared Eastern Highlands to be a public nuisance, directed defendant to immediately install the required smoke detection and fire suppression equipment in his buildings, directed defendant to install the necessary fire hydrant in full working order, and ordered defendant to promptly “complete all repairs as required to those addresses listed in the Township’s inspection reports ... .” The court authorized plaintiffs officials to enter and reinspect the premises in order “to determine compliance with the installation of the smoke detectors and fire extinguishers as required above” and in order to ensure compliance with plaintiffs fire code and property maintenance code generally. The court scheduled a review hearing and noted that it would consider the issue of costs and attorney fees at a later date. The court observed that if defendant failed to comply with the order, it would “consider the request... to appoint a receiver to arrange for and oversee the completion of all required repairs and installations at Defendant’s expense.”
At a subsequent review hearing, plaintiffs officials testified that defendant had not complied with the terms of the court’s order, that he was still not in compliance with the township’s fire and property maintenance codes, and that defendant had not cleaned up or remediated the soil that had been contaminated by the initial sewage discharge. Testimony indicated that defendant had not installed the required smoke detectors or fire extinguishers and had not installed the missing fire hydrant. Plaintiffs building director also testified about his concern that one of the walls at Eastern Highlands had deteriorated and was in danger of immediate collapse.
Following another review hearing, the circuit court entered an “Order for Continuing Nuisance Abatement,” finding that defendant had “not completely cooperated or complied with the previous orders of this Court.” The court denied plaintiffs requests for the appointment of a receiver and to hold defendant in contempt. The court again ordered defendant to install the missing fire hydrant, ordered defendant to clean up and remediate the contaminated substrate in the area of the storm drain, ordered defendant to complete a videotaped inspection of the sewage lines at Eastern Highlands, directed defendant to fix a previously identified broken window that posed an imminent danger of falling, and ordered defendant to repair the brick wall of Building E that was in danger of imminent collapse. The court gave defendant specific time frames in which to complete these required repairs and installations. The court also ordered that all occupied units at Eastern Highlands “shall be brought into compliance as required in the Notices of Violation” that plaintiffs officials had issued to defendant earlier. The court noted that it “will not hesitate” to hold defendant in contempt or to appoint a receiver “in the future should this Court find Defendant not to be in compliance with this or any other orders ....”
Following yet another hearing, the circuit court entered an “Order Finding Defendant David Kircher in Contempt of Court and for Continued Nuisance Abatement.” The court found that defendant still had not completed any of the required repairs and installations, ordered defendant to spend three days in jail for contempt of court, and scheduled an additional review hearing. The court noted that if defendant was not in compliance with the court’s orders as of the date of the next hearing, “the Court will most likely appoint a receiver as Plaintiff requests.”
At a review hearing in December 2004, the circuit court heard testimony from several of plaintiffs officials and from defendant himself. The testimony established that defendant still had not installed the missing fire hydrant, that defendant had not produced video footage of the sewer line, that defendant had not remediated the contaminated soil, that defendant had not repaired the collapsing wall at Building E, that defendant had not repaired the window that was in danger of falling, that defendant had not fixed or repaired any of the other conditions listed in the “Notice of Violations” that he had earlier received, and that defendant had not fully cooperated with plaintiffs requests to enter the premises for the purpose of conducting inspections. Following the hearing, the circuit court entered an “Order for Continuing Nuisance Abatement and for Appointment of Receiver,” which provided:
[A]s a result of [defendant’s] continuing refusal to obey the orders of this Court, which refusal has continued to jeopardize the health, safety, and welfare of the residents of Plaintiff Charter Township of Ypsilanti and the occupants of Defendant’s premises by exposing them to violations of State and local fire codes, Plaintiffs Property Maintenance Codé, and continued exposure to raw sewage contaminants, McKinley Properties or such other party as the township shall choose shall be and hereby is appointed Receiver over Defendant’s property, Eastern Highlands Apartments. To serve until such time as the public nuisance has been abated or the further order of this court.
The order stated that “the Receiver shall attempt to make the premises economically viable, if possible, and shall maintain detailed records of the costs for time and material expended in furtherance of its appointed tasks.” The order also provided that “upon completion of repairs, the Receiver is granted a lien against the subject property for all fees and cost invoices which have not been paid by Defendant Kircher.” Finally, the order provided that defendant would be required to “reimburse Plaintiff its costs and attorney fees incurred in conjunction with obtaining Defendant’s compliance with [plaintiffs] codes and ordinances in this action.”
Following entry of the circuit court’s December 2004 order, defendant hired an attorney, who filed objections and moved for reconsideration. The court entered an “Amended Order” on January 19, 2005, that more precisely defined the duties and responsibilities of the receiver. The amended order also provided that “in the event McKinley Properties is not willing to perform under this order, Plaintiff may return to this Court for the appointment of an alternative receiver or such other relief as may be appropriate.”
On January 25, 2005, plaintiff filed a “Motion for Appointment of Alternate Receiver,” asserting that it had learned that “McKinley Properties does not wish to act as receiver under the terms and conditions of the order” and asking “that Barnes & Barnes be appointed receiver over the properties known as Eastern Highlands Apartments ....” Defendant opposed the appointment of Barnes & Barnes and argued that no receiver was necessary in this case.
In early February 2005, the circuit court entered an “Order Appointing Alternate Receiver,” specifying that “Barnes & Barnes shall be, and hereby is appointed receiver over [defendant’s] property, which is the subject matter of this lawsuit (a.k.a. Eastern Highlands Apartments) to act subject to and in accordance with the Court’s order entered January 19, 2005, which expressly defines the duties and obligations of the receiver.” The court also ordered that regular hearings would be held “to determine if charges are appropriate & reasonable for the court ordered repairs.”
Also in early February 2005, the circuit court granted a preliminary injunction, enjoining defendant from evicting any of the tenants of Eastern Highlands and ordering defendant to “stay off Eastern Highlands property until further order except to remove his personal belongings immediately . . . .”
Defendant moved for reconsideration of the order appointing Barnes & Barnes as the alternative receiver, but the court denied the motion.
The circuit court held additional review hearings in early and mid-2005 and approved several of the receiver’s expenses and invoices. The court also denied defendant’s motion to terminate the receivership. Then, in August 2005, Washtenaw Circuit Judge David Swartz disqualified himself from this case, and the matter was reassigned to Washtenaw Circuit Judge Donald Shelton.
Judge Shelton held an extensive review hearing in early February 2006 for the purpose of reviewing the receiver’s expenditures and invoices from May 2005 through December 2005. The court heard testimony from plaintiffs building director and from Robert Barnes, Jr., the representative of receiver Barnes & Barnes. The court also reviewed photographs of Eastern Highlands and admitted the receiver’s invoices into evidence. The following day, the court heard the testimony of defendant Kircher himself. Defendant explained how he would have repaired or corrected several of the code violations at Eastern Highlands and testified that many of the repairs would have cost him less than the receiver had expended to perform the same jobs. Defendant admitted that although he had purchased a new fire hydrant for Eastern Highlands, he had never installed it as the court had ordered. Otherwise, defendant presented no additional testimony or evidence concerning the propriety or reasonableness of the receiver’s expenditures.
The receiver then moved for payment and to terminate the receivership. On April 19, 2006, the circuit court entered a detailed “Opinion and Order and Findings of Fact and Conclusions of Law Regarding Receiver’s Motion for Payment.” The court summarized the background of the case and observed that it had taken extensive evidence and testimony at the various review hearings. The court ruled:
[T]he charges sought by the receiver from May 2005 through December 2005 are reasonable and necessary and subject to payment from the Defendant. The improvements made were necessary to remedy code violations and/or remediate hazards to human life as evidenced by the testimony of the Building Inspector Ronald Fulton. Mr. Fulton’s testimony was clear that prior to the appointment of a receiver his access to these buildings [at Eastern Highlands] and the specific units was obstructed by the defendant. After [Fulton] was permitted unfettered access into the buildings, he found a multitude of code violations. He testified that he spent a significant amount of time inspecting and re-inspecting the buildings. All of these inspections [revealed the need for] additional repairs to remedy the code violations. Therefore the receiver was charged with remedying the initial code violations and the newly discovered violations.
The repairs included the necessity of replacing all of the windows in the apartment buildings, repairing a significant amount of the plumbing, repairing the electrical wiring, and completing structural repairs of the walls which included dry walling of many units. In addition, many of the bathrooms in the units needed new equipment and a majority of units needed new kitchen equipment. The units were in such disrepair that demolition work was a necessity. Many of the entry doors to the units as well as doors within the units had to be replaced. The carpet and padding was so bad that it had to be removed in many of the units and was replaced in some of the units. The receiver completed necessary structural repairs to the exterior of the building[s] including removal of deteriorated steps and walkways, removal of fencing and fence poles, and repairing chimneys and building mortar. The receiver also rented tens of dumpsters simply to remove accumulated debris and other unhealthy materials from the uninhabitable units and paid the costs of removal. The receiver then had to pay for the materials and labor to have those buildings boarded up to prevent further deterioration and potential liability. The receiver has expended great sums of money on permits, utility bills, maintenance, eviction proceedings, and other legal proceedings. The receiver is entitled to reimbursement of all these fees which this Court finds were reasonable and necessary.
The Court also finds that the 25% markup fees are allowed based on Judge Swartz’ April 22, 2005 Order .... This Court agrees with Judge Swartz’ rationale for allowing these markups....
Therefore, the Court orders that Defendant shall pay the initial $150,401.82 which was ordered to be paid by Judge Swartz and shall pay the additional $1,552,078.88 hereby approved by this Court. The total amount owed to the Receiver is $1,702,480.70. Payment is due forthwith and the receiver is granted a lien in that same amount.
The Court agrees with plaintiff that the terms and conditions of the receiver’s appointment should be modified. The Court therefore orders that the receivership as to buildings E, F, G, H, J, K, L, and M is terminated. The cost of bringing these buildings up to code far exceeds the value of the buildings. These buildings have already been secured and boarded up and shall remain secured and boarded up. Water and gas to these buildings shall not be resumed without further order from this Court. The receiver’s request to fence off this portion of the premises to prevent unauthorized access is also GRANTED.
The receivership for buildings A, B, C, D, N, 15 and R, all of which are situated closest to LeForge Road is also terminated. The Court finds that the receiver has brought these buildings up to code and remediated the soil contamination and sewage discharge. A receivership is no longer necessary to protect the interest of the public or the tenants currently leasing those premises.
The Receiver’s request to be appointed property manager for the apartment complex is GRANTED but limited to the 180 days following entry of this order.
Following the circuit court’s ruling of April 19, 2006, plaintiff moved for reimbursement by defendant of its costs and attorney fees incurred in this action. The motion stated that the “total costs and attorney fees incurred by Plaintiff in this action to date are $60,057.72.” Further, the receiver filed a “Motion for Continued Exclusive Possession” of the Eastern Highlands premises. The circuit court entered an order providing that “Defendant David Kircher shall be prohibited from having any direct contact with the tenants at Eastern Highlands .. . .”
The receiver then filed a “Motion for Order to Sell Real Property,” arguing that defendant had not paid the outstanding $1,702,480.70 and asking the court to order a judicial sale of the premises in order to raise the amount that was owing and due. Defendant responded by arguing that the receiver’s lien was a judgment lien and could not be foreclosed. Defendant also argued that any sale of Eastern Highlands had to conform to the procedural requirements for selling real estate on execution.
In September 2006, the circuit court granted plaintiffs motion for costs and attorney fees. The court ordered defendant to pay plaintiff “the sums of $48,614.82 for attorney fees and $12,935.40 in costs, within 30 days of this Order. In the event defendant fails to pay such amounts, a lien shall be granted against the property at issue.” The circuit court also ruled:
The receiver in this case has petitioned the court to allow the property to be sold. The receiver and the plaintiff have a dispute as to lien priority. The court finds that the issue [concerning lien priority] is not ripe for decision and must be brought if, and when, the property is sold. However, the Court finds that the receiver may sell the property 30 days from the date of this order if all receivership payments, attorney fees and costs have not been paid.
After 30 days, when defendant still had not paid the receiver, the receiver commenced proceedings to sell the property. A judicial sale was conducted on November 30, 2006. The receiver was the only bidder and submitted a bid in the amount of $2,344,586.10. This amount included the $1,702,480.70 lien amount, as well as interest, taxes in the amount of $336,663.55 paid to prevent a tax foreclosure, utility expenses in the amount of $43,457.39, and other costs incurred by the receiver for maintaining the property between January 1, 2006, and the date of the sale. A sheriffs deed was executed, conveying absolute title to the property to the receiver pending a judicial confirmation of the sale.
On April 20, 2007, the circuit court entered an order “Confirming Judicial Sale.” The order provided that the receiver’s lien
was not a judgment lien pursuant to ... MCL 600.2801 through MCL 600.2819. Defendant erroneously cites authority from the judgment foreclosure statutes in the Revised Judicature Act. The authority cited by defendant does not apply in this case. The lien in this case was ordered to protect the interest of the receiver pending the sale of the property.
The circuit court acknowledged that “courts may not create or impose a lien on real property absent an express agreement by the parties or other legal authority.” However, the court nonetheless concluded that it “had legal authority to order a judicial lien in favor of the receiver in this matter” because “a receiver may be compensated out of funds or property in [the court’s] custody.” The court observed that defendant had not paid the receiver and that the receiver had consequently been entitled to foreclose its lien. The court granted the receiver’s motion to confirm the judicial sale of the property. Thereafter, the circuit court again ordered defendant to pay plaintiffs costs and attorney fees incurred in this matter, in the amount of $61,550.22 plus interest.
ii
Defendant argues that the circuit court erred by declaring in the first instance that Eastern Highlands was a public nuisance. Plaintiff responds by arguing that there were conditions at Eastern Highlands that threatened the general health, safety, and welfare and that defendant actually stipulated to the circuit court’s original order that detailed the nuisance conditions existing at Eastern Highlands.
A
Whether an allegedly injurious condition constitutes a nuisance per se is a question of law. Huang v Wildbrook Apartments, 62 Mich App 340, 342-343; 233 NW2d 276 (1975); see also Brown v Nichols, 337 Mich 684, 689; 60 NW2d 907 (1953). However, whether an allegedly injurious condition constitutes a nuisance in fact is a question of fact. Brown, 337 Mich At 689; see also Beard v Michigan, 106 Mich App 121, 124; 308 NW2d 185 (1981). “ ‘The difference between a nuisance per se and one in fact is not in the remedy but only in the proof of it.’ ” Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959) (citation omitted).
Nuisance-abatement proceedings brought in the circuit court are generally equitable in nature. MCL 600.2940(5). We review de novo the circuit court’s equitable decisions, but review for clear error the findings of fact supporting those decisions. Yankee Springs Twp v Fox, 264 Mich App 604, 611; 692 NW2d 728 (2004).
B
Before the circuit court could take cognizance of plaintiffs complaint for nuisance abatement pursuant to MCL 600.2940, it was first required to determine that there was a nuisance in need of abatement. We conclude without difficulty that the raw sewage discharge and contamination at Eastern Highlands did indeed constitute a public nuisance. This condition was dangerous to human life. It imperiled the health, safety, and welfare of the tenants of Eastern Highlands and the other nearby residents. See Bronson v Oscoda Twp (On Second Remand), 188 Mich App 679, 684; 470 NW2d 688 (1991). Beyond this, defendant stipulated the fact that the fire code violations identified at Eastern Highlands created a public nuisance. Defendant acknowledged in open court that he had no objections to that portion of the proposed order dealing with the identified fire code violations, and defendant conceded that the fire code applied to occupied and unoccupied units alike. A stipulation entered in open court is generally binding on the parties. Kline v Kline, 92 Mich App 62, 79; 284 NW2d 488 (1979). Thus, to the extent that the circuit court’s original order was based on the raw sewage release and contamination and the identified fire code violations, it was proper. These conditions posed clear and immediate risks to the general health, safety, and welfare. The circuit court did not err by declaring Eastern Highlands a public nuisance on these grounds. See Bronson, 188 Mich App at 684.
Contrary to plaintiff’s position on appeal, defendant did not stipulate that the identified property maintenance code violations at Eastern Highlands created a public nuisance. The record reveals that defendant indicated that he would agree to the proposed order only as long as he could retain the right to object in the future to any of the alleged property maintenance code violations specified in the order. Plaintiffs counsel specifically agreed to this request by defendant. However, this does not change the fact that Eastern Highlands was properly declared a public nuisance by virtue of the sewage contamination and the fire code violations alone. Even in the absence of the property maintenance code violations, there still would have been sufficient evidence for the circuit court to declare Eastern Highlands a public nuisance.
in
Defendant next argues that the circuit court’s placement of Eastern Highlands into receivership was an unconstitutional taking of his private property. We disagree.
A
We review constitutional issues de novo on appeal. Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004).
B
Contrary to defendant’s assertions, Eastern Highlands constituted a public nuisance, and the circuit court was therefore constitutionally authorized to take steps toward abating the nuisance conditions. Defendant disregards the well-established nuisance exception to the prohibition of governmental takings. The federal and state constitutions both proscribe the taking of private property for public use without just compensation. US Const, Am V; Const 1963, art 10, § 2; Adams Outdoor Advertising v East Lansing (After Remand), 463 Mich 17, 23; 614 NW2d 634 (2000). However, the nuisance exception to the prohibition of unconstitutional takings provides that because no individual has the right to use his or her property so as to create a nuisance, “the State has not ‘taken’ anything when it asserts its power to enjoin [a] nuisance-like activity.” Keystone Bituminous Coal Ass’n v DeBenedictis, 480 US 470, 491 n 20; 107 S Ct 1232; 94 L Ed 2d 472 (1987). Indeed, “Courts have consistently held that a State need not provide compensation when it diminishes or destroys the value of property by stopping illegal activity or abating a public nuisance.” Id. at 492 n 22. Because plaintiff was exercising its legitimate police power to abate the public nuisance on defendant’s property, no unconstitutional taking occurred. Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496, 555 n 22; 730 NW2d 481 (2007).
IV
Defendant next argues that the circuit court abused its discretion by appointing a receiver to abate the alleged nuisance conditions at Eastern Highlands and by appointing a receiver that was not disinterested. Again, we disagree.
A
We review for an abuse of discretion the circuit court’s decision to appoint a receiver. Id. at 523. An abuse of discretion occurs when the court’s decision falls outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
B
Defendant had been repeatedly warned of his responsibility to clean up and remediate the raw sewage contamination at Eastern Highlands, and he had also been directed on several occasions to correct the identified fire code violations on his property. Even after repeated warnings and requests, however, defendant continued to defiantly refuse to remediate or correct any of these identified nuisance conditions. We recognize that the appointment of a receiver is a remedy of last resort and should not be used when another, less drastic remedy exists. Ypsilanti Fire Marshal, 273 Mich App at 530; Hofmeister v Randall, 124 Mich App 443, 446; 335 NW2d 65 (1983). However, the appointment of a receiver is appropriate when other attempts have failed and a property owner has repeatedly refused to comply with the court’s orders. Ypsilanti Fire Marshal, 273 Mich App at 523; Band v Livonia Assoc, 176 Mich App 95, 105; 439 NW2d 285 (1989) (stating that the “appointment of a receiver may be appropriate when other approaches have failed to bring about compliance with the court’s orders”). We cannot conclude that the circuit court abused its discretion by appointing a receiver in this case.
c
Defendant also argues that the circuit court abused its discretion by appointing a receiver that was not disinterested and by delegating to plaintiff the responsibility of choosing the receiver in this case. We agree, but conclude that there is no lasting error entitling defendant to relief in this regard since the receivership has already been dissolved. Robert Barnes, the representative of receiver Barnes & Barnes, testified during at least one of the hearings before the circuit court that he could not work with defendant and that he and defendant did not get along. We fully acknowledge that Barnes & Barnes had previously been appointed as the receiver for other properties owned by defendant and had committed several improprieties in other cases by failing to obtain the court’s permission before starting costly projects and by charging defendant for questionable and unnecessary repairs. We also acknowledge that a circuit court may not delegate the responsibility of choosing a receiver to one of the parties. Indeed, the “power to appoint a receiver belongs exclusively to the circuit court.” Ypsilanti Fire Marshal, 273 Mich App at 528. However, the receivership in the instant case has now been terminated, and Barnes & Barnes is therefore no longer the court-appointed custodian of Eastern Highlands. In light of this fact, we conclude that there is no lasting error that this Court can remedy. See id. at 529; see also In re Contempt of Dudzinski, 257 Mich App 96, 112; 667 NW2d 68 (2003) (holding that an issue has become moot when the court is no longer able to fashion a remedy for the controversy).
v
Defendant argues that even if the receiver’s appointment was proper, the circuit court nonetheless erred by approving several excessive and unnecessary expenditures by the receiver. We agree in part.
A
The circuit court’s determination concerning the propriety and reasonableness of a receiver’s expenses is treated as presumptively correct because the circuit court “has far better means of knowing what is just and reasonable than an appellate court can have.” Kurrasch v Kunze Realty Co, 296 Mich 122, 124; 295 NW 583 (1941). We therefore review for an abuse of discretion the circuit court’s decision to approve or disapprove the individual expenses incurred by the receiver. Id. An abuse of discretion occurs when the court’s decision falls outside the range of reasonable and principled outcomes. Maldonado, 476 Mich at 388.
B
The receiver was originally appointed for the purpose of abating the nuisance conditions at Eastern Highlands, and was initially directed by the circuit court to perform only the minimum necessary repairs. Nevertheless, the circuit court ultimately permitted the receiver to complete numerous repairs and projects that were in no way related to abating the original nuisance conditions for which the receiver had been appointed. This is demonstrated in part by the circuit court’s December 2004 order directing that “the Receiver shall attempt to make the premises economically viable .. ..”
Unlike the nuisance-abatement action in Ypsilanti Fire Marshal, the present action was not based on Michigan’s Fire Prevention Code, MCL 29.1 et seq. Instead, this action was based entirely on alleged violations of the local fire and property maintenance codes and was brought pursuant to Michigan’s general nuisance-abatement statute, MCL 600.2940, only. Circuit courts have broad equitable authority to abate nuisances under MCL 600.2940. Ypsilanti Fire Marshal, 273 Mich App at 527 n 12. However, before proceeding to abate a nuisance under the terms of MCL 600,2940, a court must naturally first determine that a nuisance actually exists.
“The word ‘nuisance’ has been variously defined and is so comprehensive that its existence must be determined from the facts and circumstances of each case.” Ebel v Saginaw Co Bd of Rd Comm’rs, 386 Mich 598, 606; 194 NW2d 365 (1972). However, at its core, “[public nuisance includes interference with the public health, the public safety, the public morals, the public peace, the public comfort, and the public convenience in travel.” Bronson, 188 Mich App at 684.
The essential element of a nuisance is a wrongful, continuing, impending danger to the lives or health of the public, or to the legitimate property or personal rights of private persons peculiarly subject to the danger. A condition that is so threatening as to constitute an impending danger to the public welfare is a nuisance. [19 Michigan Civil Jurisprudence, Nuisances, § 1, pp 62-63.]
See also Garfield Twp v Young, 348 Mich 337, 342; 82 NW2d 876 (1957) (listing cases describing various types of public nuisances).
The costs of clean up and remediation of the raw sewage contamination were necessary, as were the costs of repairing and correcting the identified fire code violations. The raw sewage contamination and the fire code violations constituted bona fide public nuisances because they endangered the general health, safety, and welfare of the tenants of Eastern Highlands. The circuit court did not abuse its discretion by ordering defendant to pay all costs related to the cleanup and remediation of the raw sewage contamination and all costs related to the repair and correction of the identified fire code violations. Kurrasch, 296 Mich at 124.
Nor did the court abuse its discretion by approving the receiver’s expenses incurred in the repair and abatement of those property maintenance code violations that actually caused or contributed to the public nuisance at Eastern Highlands. Code violations such as exposed live electrical wires, significant accumulations of trash and rubbish, insect and vermin infestations, falling bricks and windows, collapsing walls, and sanitary sewer leakages certainly posed substantial risks to the general health, safety, and welfare of the tenants of Eastern Highlands. The circuit court acted within its discretion by approving the reasonable and necessary costs of repairing and correcting all serious property maintenance code violations of this nature.
Conversely, however, the court abused its discretion by ordering the receiver to do anything necessary “to make the premises economically viable” and by ordering defendant to pay costs that were unrelated to the abatement or repair of actual nuisance conditions. Many of the alleged property maintenance code violations at issue in this case were minor, did not immediately endanger the health and safety of the public or the tenants, and therefore did not cause or contribute to the public nuisance at Eastern Highlands. Code violations such as chipped paint, dripping faucets, improperly caulked bathtubs, improperly caulked windows, missing roof flashing, and small holes in the drywall simply did not rise to the level of public nuisance conditions. We fully recognize that these conditions constituted violations of the local property maintenance code. But the mere fact that a condition consti tutes a violation of a local ordinance does not make that condition a public nuisance, and the circuit court has no jurisdiction to abate or enjoin such a condition unless it is independently established that the condition constitutes a nuisance. See Garfield Twp, 348 Mich at 340; see also 58 Am Jur 2d, Nuisances, § 338, p 788 (observing that a court sitting in equity “will take jurisdiction when a violation or threatened violation of an ordinance amounts to a nuisance, not because the act is in violation of the ordinance, but because it is a nuisance”). Said another way, absent statutory authority for doing so, townships lack the power to classify violations of their ordinances as nuisances per se, and a court can therefore only enjoin such violations upon sufficient proofs that they constitute nuisances in fact. Bane v Pontiac Twp, 343 Mich 481, 494; 72 NW2d 134 (1955). To prove that a condition constitutes a nuisance in fact, it is generally necessary to establish that the condition is harmful to the public health, safety, morals, or welfare. See Garfield Twp, 348 Mich at 342.
We affirm the circuit court’s approval of the initial $150,401.82 in expenses incurred by the receiver. The record establishes that these expenses, which were approved by both Judge Swartz and Judge Shelton, were necessarily incurred to abate bona fide nuisance conditions at Eastern Highlands. In contrast, the record simply does not provide sufficient detail to allow us to determine the appropriateness of the remaining $1,552,078.88, which Judge Shelton largely approved after the fact. Because we cannot determine the propriety of these remaining expenses on the record before us, we must remand this matter for further proceedings.
Before approving these $1,552,078.88 in expenses, the trial court was required to (1) determine whether each repair or expenditure was necessary to abate an actual nuisance condition and (2) then determine whether the expenses of abating that nuisance condition were reasonable and justified. Indeed, “ ‘[t]o obtain approval by the court of an expenditure not previously authorized to be made, a receiver must show that the expense was a reasonable one..., that the amount paid is fair and reasonable, and that it has been actually paid in good faith.’ ” Corell v Reliance Corp, 295 Mich 45, 53; 294 NW 92 (1940) (citation omitted).
We vacate that portion of the circuit court’s order that approves the receiver’s expenditure of the remaining $1,552,078.88. We remand the case for a determination by the circuit court whether each property maintenance code violation in fact constituted an actual nuisance condition. If the circuit court properly finds on remand that a property maintenance code violation constituted an actual nuisance condition, then only the amount reasonably and necessarily incurred in correcting or abating that condition may be included in the corrected judgment amount. With respect to any property maintenance code violations that did not constitute actual nuisance conditions, the expenses incurred by the receiver must be excluded from the corrected judgment amount. To reiterate, it will be necessary for the court to disapprove and exclude from the total corrected judgment amount any expenses that were not reasonably and necessarily incurred by the receiver to abate or repair actual nuisance conditions at Eastern Highlands. Only those expenses properly, reasonably, and necessarily incurred to abate actual nuisance conditions at Eastern Highlands may be charged to defendant and included in the corrected judgment amount.
VI
Defendant next argues that the circuit court erred by allowing the receiver to charge a “25% mark-up on all expenditures.” We agree.
A
We review for an abuse of discretion the circuit court’s decision setting compensation for a receiver. Fisk v Fisk, 333 Mich 513, 517-518; 53 NW2d 356 (1952). An abuse of discretion occurs when the court’s decision falls outside the range of reasonable and principled outcomes. Maldonado, 476 Mich at 388.
B
“Receivers have a right to compensation for their services and expenses ... .” Cohen v Cohen, 125 Mich App 206, 215; 335 NW2d 661 (1983). However, a reeeiv er’s specific rate of compensation must be reasonable and must not be excessive. Id.; see also Fisk, 333 Mich at 517-518. In the instant case, the circuit court allowed the receiver to charge a 25 percent markup on all labor, materials, and supplies. This was excessive, even in light of the circuit court’s belief that the markup was necessary in order to attract a receiver to this particularly undesirable job. While we are disinclined to say definitively what amount of compensation would have been reasonable and justifiable, the 25 percent markup on all labor, materials, and supplies awarded in this case was simply too great. We vacate the circuit court’s order allowing the receiver to charge a 25 percent markup on all labor, materials, and supplies. We direct the circuit court to determine on remand a fairer and more reasonable amount of compensation for the receiver and to correct the amount of the judgment accordingly.
VII
Defendant also argues that the circuit court erred by granting the receiver a lien against Eastern Highlands in the amount of the judgment, by allowing the receiver to foreclose that lien, and by confirming the judicial sale of the property. We agree.
A
Whether a lien is authorized in a particular case is a question of law. We review questions of law de novo. Cowles v Bank West, 476 Mich 1, 13; 719 NW2d 94 (2006).
B
It is true that the circuit court may abate a public nuisance at the expense of the property owner. MCL 600.2940(3); Ypsilanti Fire Marshal, 273 Mich App at 538. It is also true that a receiver’s fees and compensation may be paid from the property or funds in receivership. Fisk, 333 Mich at 518; In re Dissolution of Henry Smith Floral Co, 260 Mich 299, 302; 244 NW 480 (1932). However, after reviewing the pertinent legal authority, we conclude that no lien on defendant’s real property was authorized in this case.
The courts may not impose a lien on real property absent an express agreement of the parties or other legal authority. Ypsilanti Fire Marshal, 273 Mich App at 538. As this Court has previously observed, there is no legal authority allowing the circuit court to impose a lien on a property owner’s realty for the purpose of securing the amount incurred to abate a general public nuisance under MCL 600.2940. Ypsilanti Fire Marshal, supra at 537. Nor have we located any legal authority permitting the court to impose a lien on real property for the purpose of securing fees and compensation due a receiver. We acknowledge that unpaid receiver’s fees are in the nature of “administrative costs,” which have first priority against the funds or property being held in custodia legis. Henry Smith Floral, 260 Mich at 302-303. But such “[administrative costs are not at all of the nature of a lien... .” Id. at 302. We accordingly conclude that, although a court may first satisfy the administrative costs of a receivership out of funds actually held in the court’s custody, a receiver is not entitled to a foreclosable lien in the amount of its outstanding fees and compensation.
Costs incurred to abate general public nuisances under MCL 600.2940 must be collected in the same manner as damages and costs are generally collected on execution. MCL 600.2940(4); Ypsilanti Fire Marshal, 273 Mich App at 539. The procedure for collecting damages and costs on execution is described in chapter 60 of the Revised Judicature Act, MCL 600.6001 et seq. Under MCL 600.6004, executions against realty are permitted “only after execution has been made against the personal property of the judgment debtor that is in the county, and such personal property is insufficient to meet the sum of money and costs for which judgment was rendered.” Because the receiver in this case did not first attempt to satisfy the judgment by execution against defendant’s personal property, it was not entitled to execute against defendant’s realty. MCL 600.6004.
In the absence of any authority to the contrary, we similarly conclude that a judgment for unpaid fees and compensation due a receiver must be collected in the same manner as damages and costs are generally collected on execution. “Issuance of execution is the ordinary method of enforcing a legal or equitable judgment for the payment of money.” 7 Michigan Pleading & Practice, Executions, § 49:1, p 304. Like the collection of costs incurred to abate public nuisances under MCL 600.2940, the collection of a judgment for unpaid receiver’s fees and compensation must also proceed in accordance with chapter 60 of the Revised Judicature Act.
We note that the receiver was not entitled to an equitable lien in this case. “Equity will create a lien only in those cases where the party entitled thereto has been prevented by fraud, accident or mistake from securing that to which he was equitably entitled.” Cheff v Haan, 269 Mich 593, 598; 257 NW 894 (1934). A party that has an adequate remedy at law is not entitled to an equitable lien. Yedinak v Yedinak, 383 Mich 409, 415; 175 NW2d 706 (1970). Here the receiver had an adequate remedy at law — namely, execution against defendant’s personal or real property pursuant to chapter 60 of the Revised Judicature Act. Therefore, no equitable lien was warranted on the facts of this case.
Nor did the lien imposed on defendant’s real property in this case qualify as a judgment lien pursuant to chapter 28 of the Revised Judicature Act, MCL 600.2801 et seq. The circuit court expressly stated that the lien in this case was not intended as a judgment lien. Moreover, even if the court had intended the lien to comply with the provisions of chapter 28, judgment liens may not be foreclosed. MCL 600.2819.
We vacate the lien, which the circuit court imposed on defendant’s realty notwithstanding the absence of an express agreement of the parties or any other legal authority. It is true that we are generally disinclined to set aside a foreclosure and sale “in the absence of fraud, accident, mistake, or significant irregularities.” Ypsilanti Fire Marshal, 273 Mich App at 535. In this case, however, the irregularities were substantial. They were not “ ‘mere technical irregularities,’ ” as have been found in other cases. Carpenter v Smith, 147 Mich App 560, 568; 383 NW2d 248 (1985), quoting Madill v Michigan Nat’l Bank, 302 Mich 251, 255; 4 NW2d 538 (1942). Instead, the irregularities at issue here were fundamental defects that went to the very validity of the purported lien itself. In short, the lien granted in favor of the receiver in this case was entirely unauthorized by law. And because the hen was void, “there was nothing upon which foreclosure proceedings could operate.” Fox v Martin, 287 Mich 147, 153; 283 NW 9 (1938). We set aside the foreclosure and sale, and vacate the circuit court’s order confirming the sale as well.
vm
Plaintiff next argues that the circuit court erred by granting attorney fees to plaintiff. We cannot agree.
A
We generally review for an abuse of discretion a circuit court’s grant of attorney fees. Findings of fact on which the court bases its award of attorney fees are reviewed for clear error; questions of law are reviewed de novo. Stallworth v Stallworth, 275 Mich App 282, 288; 738 NW2d 264 (2007). An abuse of discretion occurs when the court’s decision falls outside the range of reasonable and principled outcomes. Maldonado, 476 Mich at 388.
B
“Michigan adheres to the general rule that attorney fees are not recoverable, either as an element of costs or as an item of damages, unless expressly authorized by statute, court rule, or a recognized exception.” Brooks v Rose, 191 Mich App 565, 574-575; 478 NW2d 731 (1991). However, “ ‘[r]ecovery has been allowed in limited situations where a party has incurred legal expenses as a result of another party’s fraudulent or unlawful conduct.’ ” Spectrum Health v Grahl, 270 Mich App 248, 253; 715 NW2d 357 (2006), quoting Brooks, 191 Mich App at 575. Plaintiff was forced to incur substantial costs and attorney fees to prosecute this matter, which originally arose out of defendant’s illegal and egregious discharge of raw sewage into a public storm drain. The matter then continued when defendant flaunted the circuit court’s orders requiring him to clean up and remediate the contaminated areas on his property, and when he refused to bring his buildings into compliance with applicable local ordinances. Plaintiff incurred substantial legal expenses as a result of defendant’s unlawful conduct. Spectrum Health, 270 Mich App at 253. We cannot conclude that the circuit court’s award of attorney fees for plaintiff fell outside the range of reasonable and principled outcomes. Maldonado, 476 Mich at 388.
IX
Defendant lastly suggests that his continued dispossession after the dissolution of the receivership constituted an unconstitutional taking of private property. But as plaintiff points out in its brief on appeal, defendant has failed to brief the merits of this issue and has cited no authority in support of his assertion. An appellant may not simply announce a position on appeal and leave it to this Court to rationalize the basis for that claim. Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998). Defendant’s failure to properly address the merits of his assertion of error constitutes an abandonment of this issue on appeal. MCR 7.212(C)(7); Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002).
x
We affirm the circuit court’s order declaring Eastern Highlands to be a public nuisance. The discharge of raw sewage and the fire code violations at Eastern High lands endangered the public health, safety, and welfare. We similarly affirm the circuit court’s appointment of a receiver to oversee and implement the process of nuisance abatement. Finally, we affirm the circuit court’s specific award of costs and attorney fees for plaintiff, and we affirm the circuit court’s approval of the initial $150,401.82 in expenses incurred by the receiver.
We vacate the circuit court’s approval of the remaining $1,552,078.88 in expenses incurred by the receiver. We also vacate the circuit court’s order allowing the receiver to charge a 25 percent markup on all labor, materials, and supplies. Finally, we vacate the lien imposed against defendant’s real property, set aside the foreclosure and sale, and vacate the circuit court’s order confirming the sale.
On remand, the circuit court shall (1) redetermine which property maintenance code violations constituted actual nuisance conditions at Eastern Highlands (i.e., separate the minor property maintenance code violations from those that actually endangered the general health, safety, or welfare) and (2) determine whether the expenses of abating these actual nuisance conditions were reasonable and justified. After this is completed, the circuit court shall calculate a new and corrected judgment amount, which shall include only (1) the initial $150,401.82 in expenses incurred by the receiver, (2) any reasonable expenses of cleanup and remediation of raw sewage contamination that were not included in the initial $150,401.82, (3) any reasonable expenses incurred to abate actual fire code violations that were not included in the initial $150,401.82, (4) any reasonable and justified expenses of abating those property maintenance code violations that constituted actual nuisance conditions, (5) other necessary and reasonable amounts paid by the receiver for maintaining the property between January 1, 2006, and the date of the judicial sale, such as taxes and utility costs, and (6) reasonable compensation for the receiver in an amount less than the 25 percent markup that was initially permitted. Once the new and corrected judgment amount is calculated, the judgment may be collected on execution according to the proper methods only.
Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs under MCR 7.219, neither party having prevailed in full.
Robert Barnes was not the receiver himself, but was instead the authorized representative of receiver Barnes & Barnes. Nonetheless, for purposes of convenience, we refer to him informally as the receiver throughout this opinion.
Defendant was subsequently charged with and convicted of discharging a dangerous substance into the waters of this state, MCL 324.3115(2) and (4). He was sentenced to five years in prison and was ordered to pay a $1 million fine. This Court has recently affirmed defendant’s convictions and sentence. People v Kircher, unpublished opinion per curiam of the Court of Appeals, issued August 14, 2008 (Docket No. 275215).
Judge Swartz explained that he was not actually biased against defendant, but noted that he would disqualify himself in order to avoid the appearance of bias or impropriety.
A nuisance per se is also known as a nuisance at law. Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959). “ ‘A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.’ ” Id. (citation omitted).
A nuisance in fact is also known as a nuisance per accidens. Bluemer, 356 Mich at 411. “ ‘Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger and inflict injury on person or property.’ ” Id. (citation omitted).
The Taking Clause of the Fifth Amendment is substantially similar to the Taking Clause of the Michigan Constitution, Tolksdorf v Griffith, 464 Mich 1, 2; 626 NW2d 163 (2001), and the two provisions should generally be interpreted coextensively, see Peterman v Dep’t of Natural Resources, 446 Mich 177, 184 n 10; 521 NW2d 499 (1994).
This list is not intended as exclusive, but merely serves to provide examples of the types of major property maintenance code violations that constituted bona fide nuisance conditions in this case.
It is trae that certain violations of local ordinances enacted under the Michigan Zoning Enabling Act, MCL 125.3101 et seq., are presumptively classified as nuisances per se. MCL 125.3407. However, the Ypsilanti Charter Township property maintenance code was not enacted under the Michigan Zoning Enabling Act.
The charges incurred to correct the property maintenance code violations that did not independently constitute nuisance conditions may not be included in the corrected judgment amount on remand. But this does not necessarily mean that the receiver may not collect the amounts reasonably and necessarily expended to repair or correct the non-nuisance code violations. On remand, and in the circuit court’s discretion, the receiver may intervene and set forth a claim of quantum meruit for the amount of these otherwise-unrecoverable, non-nuisance-related expenses. In this way, the receiver might still collect from defendant any amounts reasonably and properly expended to fix or correct non-nuisance properly maintenance code violations at Eastern Highlands. After all, defendant was under a duty to correct or repair these non-nuisance violations himself, and requiring the receiver to bear the expense of repairing these violations would result in defendant’s unjust enrichment. See, e.g., Morris Pumps v Centerline Piping, Inc, 273 Mich App 187, 201; 729 NW2d 898 (2006).
This is not to say that a 25 percent markup on labor, materials, and supplies may not be warranted in other receivership matters. We simply conclude that a 25 percent markup was excessive in light of the unique and particular facts of this case.
As noted earlier, unlike the nuisance-abatement action in Ypsilanti Fire Marshal, the present action was not based on Michigan’s Fire Prevention Code. Instead, this action was based entirely on Michigan’s general nuisance-abatement statute, MCL 600.2940. It is true that liens are authorized under Michigan’s Fire Prevention Code to secure the expenses of abating certain types of nuisances. MCL 29.16(1); Ypsilanti Fire Marshal, 273 Mich App at 537 n 17. Other specific statutes authorize liens for the expenses of abating particular nuisances as well. Id. at 537 n 18. However, none of these statutes is applicable in this case. There is quite simply no statute that authorizes hens for the expenses of general nuisance abatement under MCL 600.2940. Indeed, costs incurred to abate general public nuisances must be collected in the same manner as damages and costs are generally collected on execution. MCL 600.2940(4).
In Henry Smith Floral, the receiver’s fees and compensation were readily payable out of funds raised through the foreclosure sale of an unrelated mortgage. Had the circuit court possessed similar liquid funds in the present case, the court could have simply paid the receiver’s fees and compensation directly as an administrative cost rather than including the outstanding receiver’s fees and compensation as an element of the judgment. See Henry Smith Floral, 260 Mich at 302. However, because the court in this case had no liquid assets from which it could directly pay the receiver’s fees and compensation as an administrative cost, it was necessary for the court to enter a judgment for the receiver in the proper amount.
After the circuit court determines a new and corrected judgment amount on remand, the receiver will first be required to attempt to execute that judgment against defendant’s personalty. MCL 600.6004. The receiver will then be permitted to execute against defendant’s realty, in accordance with the provisions of chapter 60 of the Revised Judicature Act, but “only after execution has been made against the personal property of the judgment debtor that is in the county, and such personal property is insufficient to meet the sum of money and costs for which judgment was rendered.” Id. Any such execution against defendant’s realty must conform exactly to the law governing the enforcement of judgments and may not proceed under the novel and erroneous “foreclosure” procedure concocted by the receiver and the receiver’s attorneys. For instance, in the case of execution against defendant’s realty, defendant must be afforded the right of redemption. MCL 600.6062. Also, in the case of execution against defendant’s realty, any surplus proceeds remaining after satisfaction of the judgment must be paid over to defendant. MCL 600.6044. We are aware that property in custodia legis is not generally subject to execution. Jensen v Oceana Circuit Judge, 194 Mich 405, 411; 160 NW 620 (1916); see also 27 Michigan Law & Practice, Remedies, § 23, p 194. However, the receivership in this case has been terminated, and defendant’s property therefore will no longer be in custodia legis at the time of any future execution against it.
Defendant also appears to argue that the circuit court erred by granting costs for plaintiff. However, defendant has failed to brief this argument and has accordingly abandoned the issue on appeal. MCR 7.212(C)(7); Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002).
As noted previously, what constitutes a nuisance in fact is a question of fact. Brown, 337 Mich at 689. The establishment of a nuisance in fact generally requires some proof that a condition is dangerous to human life or that it otherwise imperils the general health, safety, or welfare. See Bronson, 188 Mich App at 684.
We wish to make clear that the circuit court will not necessarily need to take new evidence on remand in order to comply with our directives. The circuit court “may utilize evidence and testimony already in the record and it need not duplicate such evidence and testimony.” Ypsilanti Fire Marshal v Kircher, 480 Mich 910 (2007). | [
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Markey, J.
In this suit alleging negligent operation of a governmentally owned and operated school bus, plaintiffs, Charles and Lisa Allen, appeal by right the trial court’s order granting defendant’s motion for summary disposition under MCR 2.116(C)(7) based on governmental immunity because Charles had not suffered a “bodily injury.” We agree with the trial court that a plaintiff seeking to avoid governmental immunity from tort liability through the motor vehicle exception, MCL 691.1405, must establish a “bodily injury.” Here, however, plaintiffs presented objective medical evidence that Charles Allen suffered a brain injury, specifically post traumatic stress disorder as a result of the accident. If believed, we conclude that this evidence would establish a “bodily injury” within the meaning of MCL 691.1405; consequently, the trial court erred in granting defendants summary disposition on this issue. Therefore, we reverse.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff Charles Allen (Allen) was operating a train near the intersection of Kensington and Opdyke roads in the city of Bloomfield Hills when he observed a Bloomfield Hills School District (the district) school bus enter the railroad-grade crossing at Opdyke Road and attempt to proceed across the grade by maneuvering around the lowered gate. The train, which was traveling at a speed of approximately 65 miles an hour, was unable to stop and collided with the school bus. After stopping the train and running approximately one-half mile back to the accident scene, Allen was informed that there were no children on the bus at the time of the accident, but that the bus driver was severely injured. Allen was subsequently diagnosed with post traumatic stress disorder (PTSD) stemming from the accident. Allen and his wife filed this suit for recovery of noneconomic and excess economic damages alleging Allen had suffered a serious impairment of body function. MCL 500.3135. But the trial court concluded that Allen did not suffer a “bodily injury” within the meaning of the motor vehicle exception to governmental immunity, MCL 691.1405, and granted defendant summary disposition.
II. ANALYSIS
Plaintiffs argue that the triad court’s ruling was erroneous because the clear amd unambiguous language of MCL 500.3135 controls this case, rather than the language of the motor vehicle exception to governmental tort immunity, MCL 691.1405. We disagree.
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Davis v Detroit, 269 Mich App 376, 378; 711 NW2d 462 (2006). MCR 2.116(C)(7) permits summary disposition of a cladm that is barred by immunity granted by law. In reviewing a motion under MCR 2.116(C)(7), a court is required to consider not only the pleadings, but also any affidavits, depositions, admissions, or other documentary evidence filed or submitted by the parties. Horace v City of Pontiac, 456 Mich 744, 749; 575 NW2d 762 (1998). The contents of the complaint must be accepted as true unless contradicted by the documentary evidence, Davis, supra at 378, which must in turn be considered in a light most favorable to the nonmoving party, Herman v Detroit, 261 Mich App 141, 143-144; 680 NW2d 71 (2004). The triad court properly grants a motion for summary disposition under MCR 2.116(C)(7) when the undisputed facts establish that the moving party is entitled to immunity granted by law. By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 26; 703 NW2d 822 (2005).
The proper interpretation of statutes is also a question of law reviewed de novo on appeal. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). When interpreting statutory language, courts must ascertain the legislative intent that may reasonably be inferred from the words in a statute. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). When the Legislature has unambiguously conveyed its intent, the statute speaks for itself and judicial construction is neither necessary nor permitted. Id. Courts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that renders nugatory or surplusage any part of a statute. Id. Undefined words in a statute should be accorded their plain and ordinary meanings, and dictionary definitions may be consulted in such situations. Id.
A governmental agency is generally immune from tort liability arising out of the exercise or discharge of its governmental functions. MCL 691.1407(1). This would include a public school district’s operation of a bus system. Cobb v Fox, 113 Mich App 249, 257; 317 NW2d 583 (1982). But the broad immunity afforded by the statute is limited by several narrowly drawn exceptions. Jackson v Detroit, 449 Mich 420, 427; 537 NW2d 151 (1995). One of these exceptions, at issue here, is that for motor vehicles: “Governmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner . . ..” MCL 691.1405.
Plaintiffs do not dispute, as the statute unequivocally provides, that the exception is limited to “bodily injury” and “property damage.” See Wesche v Mecosta Co Rd Comm, 480 Mich 75, 84; 746 NW2d 847 (2008). Plaintiffs argue that notwithstanding these limitations, Allen was not required to establish a “bodily injury” to avoid governmental immunity because our Supreme Court determined in Hardy v Oakland Co, 461 Mich 561, 565; 607 NW2d 718 (2000), that the limitations on tort liability in the no-fault act stated in MCL 500.3135 control the broad statement of liability set forth in MCL 691.1405.
The no-fault act provides in part:
(1) A person remains subject to tort liability for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.
(3) 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 was in effect is abolished except as to:
(b) Damages for noneconomic loss as provided and limited in subsections (1) and (2).
(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. [MCL 500.3135 (emphasis added).]
In Hardy, supra at 562-563, the plaintiff filed suit against Oakland County for noneconomic damages after one of the county’s sheriffs deputies rear-ended his car. The plaintiff argued that because he sued the county under the motor vehicle exception to governmental immunity, he was not obligated to show a serious impairment of a body function under the no-fault act. Id. at 563. The Court disagreed, reasoning that the phrase “Notwithstanding any other provision of law,” MCL 500.3135(3), “reflects the Legislature’s determination that the restrictions set forth in the no-fault act control the broad statement of liability found in the immunity statute.” Id. at 565. From this analysis, the Court determined that the plaintiff in Hardy was required to show a serious impairment of a body function, the threshold for a tort action for non-economic damages under the no-fault act. Id. at 566.
Plaintiffs’ reliance on Hardy is misplaced. The issue in Hardy was not whether the plaintiff had to show “bodily injury” to invoke the motor vehicle exception to governmental immunity stated in MCL 691.1405, but whether he also had to satisfy the serious impairment of body function threshold for tort liability under the no-fault act, MCL 500.3135. In holding that the plaintiff did, our Supreme Court did not determine that a plaintiff pursuing a tort remedy for noneconomic damages under the no-fault act need not meet the requirements of MCL 691.1405. Indeed, such a holding would have been tantamount to stating that the Legislature impliedly repealed MCL 691.1405 to the extent that it pertained to such cases. But a repeal by implication may be found only when there exists a clear conflict between two statutes that precludes their harmonious application. Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 577; 548 NW2d 900 (1996); Knauff v Oscoda Co Drain Comm’r, 240 Mich App 485, 491-492; 618 NW2d 1 (2000). The plain language of MCL 691.1405 and MCL 500.3135 may be read harmoniously to provide that a plaintiff may avoid governmental immunity if he suffers “bodily injury” under the motor vehicle exception of MCL 691.1405, but he must also satisfy the no-fault act threshold for bringing a third-party tort claim, i.e., a plaintiff must establish a serious impairment of a body function as stated in MCL 500.3135. Thus, we must reject plaintiffs’ argument that Allen was not required to show a “bodily injury” within the meaning of MCL 691.1405 for the motor vehicle exception to governmental immunity to apply to his tort claim against the district.
The question remains whether plaintiff met his burden of showing a “bodily injury” within the meaning of MCL 691.1405. Because the statute does not define the term “bodily injury,” we resort to dictionary definitions and accord the term its plain and ordinary meaning. Koontz, supra at 312. Random House Webster’s College Dictionary (2001) defines “bodily” as “of or pertaining to the body” and “corporeal or material, as contrasted with spiritual or mental.” It defines “injury” as “harm or damage done or sustained, esp. bodily harm.” Black’s Law Dictionary (7th ed), p 789, also defines “bodily injury” as “[pjhysical damage to a person’s body.” Our Supreme Court in Wesche, supra at 84-85, applied a similar analysis to the words “bodily injury” in MCL 691.1405. The Court held that “ ‘bodily injury’ simply means a physical or corporeal injury to the body.” Wesche, supra at 85. Consequently, the Court held that “because loss of consortium is a nonphysical injury, it does not fall within the categories of damáge for which the motor-vehicle exception waives immunity.” Id.
Plaintiff argues that he suffered a “bodily injury” because the accident caused physical damage to his body as evidenced by a positron emission tomography (PET) scan of his brain. He relies on the affidavit of Dr. Joseph C. Wu, who reviewed plaintiffs PET scan and opined that it depicted “decreases in frontal and sub-cortical activity consistent with depression and post traumatic stress disorder.” Dr. Wu further opined that “the abnormalities in Mr. Allen’s brain as depicted on the September 8, 2006, PET scan are quite pronounced and are clearly different in brain pattern from any of the normal controls. They are also consistent with an injury to Mr. Allen’s brain.” Dr. Wu related the abnormalities to the January 13, 2004, accident. Plaintiff also relies on the report of Dr. Gerald A. Shiener, who opined that PTSD “causes significant changes in brain chemistry, brain function, and brain structure.”
The brain is a part of the human body, so “harm or damage done or sustained” is injury to the brain and within the common meaning of “bodily injury” in MCL 691.1405, as elucidated in Wesche. The question on appeal then becomes, for purposes of reviewing the trial court’s grant of summary disposition to defendant, whether plaintiff produced sufficient evidence to create a material question of fact that he suffered a “bodily injury” as so defined. In doing so, we must still adhere to the court rules and follow the law. We must review any evidence of a claimed “bodily injury” in a light most favorable to the nonmoving party. Also, we must conduct our review with common sense, and with cognizance of modern medical science and the human body. Here, plaintiff presented objective medical evidence that a mental or emotional trauma can indeed result in physical changes to the brain.
Although the brain is the organ responsible for our thoughts and emotions, it is also the organ that controls all our physical functions. The fact that it serves more than one function hardly detracts from the fact that it is one of our major organs. It can be injured. It can be injured directly and indirectly. It can be injured by direct and indirect trauma. What matters for a legal analysis is the existence of a manifest, objectively measured injury to the brain. Consequently, to survive a motion for summary disposition, we must determine whether plaintiff produced sufficient evidence that Allen suffered from an objectively manifested physical injury to his brain.
Plaintiff Allen underwent a PET scan of his brain. When Dr. Wu reviewed plaintiffs PET scan, he concluded that it demonstrated “decreases in frontal and subcortical activity consistent with depression and post traumatic stress disorder” and that “the abnormalities in ... Allen’s brain as depicted on the . . . PET scan are quite pronounced and are clearly different in brain pattern from any of the normal controls. They are also consistent with an injury to Mr. Allen’s brain.” (Emphasis added.) Plaintiffs other expert doctor, Dr. Shiener, essentially corroborated Dr. Wu’s conclusion and indicated that PTSD “causes significant changes in brain chemistry, brain function and brain structure. The brain becomes ‘rewired’ to overrespond to circumstances that are similar to the traumatic experience.” So, two separate medical doctors provided evidence that Allen suffered an injury to his brain.
We must view this evidence in the light most favorable to the nonmoving party to assess whether reasonable minds could not differ. It is evident that with this proffered evidence reasonable minds could most certainly differ about whether plaintiff suffered a “bodily injury.” We therefore conclude that this evidence is adequate, at least, to preclude summary disposition because there exists a genuine issue of material fact. In the instant case, Dr. Wu’s affidavit testimony along with Dr. Shiener’s report was sufficient to create a genuine issue of material fact regarding whether plaintiff suffered a “bodily injury.”
We find unpersuasive the dissent’s reliance on the rationale of Bobian v CSA Czech Airlines, 232 F Supp 2d 319 (D NJ, 2002), that because all thoughts and emotions are connected to brain activity, accepting plaintiffs injury as a “bodily injury” would require completely breaking down the barrier between emotional and physical harms. First of all, the Bobian court did not interpret our Michigan statute; it analyzed the term “bodily injury” with respect to air carrier liability under Article 17 of the Warsaw Convention. Moreover, lower federal court decisions are not binding precedent in this Court. Adams v Adams (On Reconsideration), 276 Mich App 704, 716; 742 NW2d 399 (2007). But just as important, we find the analysis in Bobian profoundly superficial and contrived.
The Legislature has not defined the words “bodily injury” as used in MCL 691.1405. That is why this Court and our Supreme Court in Wesche looked to dictionary definitions for guidance in ascertaining their plain and ordinary meanings. And, unless one reads into both the ruling in Wesche and the term “bodily injury” in the statute the requirement that an injury ensue solely from direct trauma, the dissent significantly alters the definition of “bodily injury” in a manner inconsistent with both the plain wording of the statute and our Supreme Court’s interpretation of that term in Wesche.
We also note that the dissent appears to concede that indeed plaintiff has an objectively verified brain injury. Its problem seems to be that plaintiff suffered no direct blow to the head, as the cause of the brain injury. Ironically, just a few years ago, the courts in this state had a difficult time understanding and accepting what is now also a universally recognized medical phenomenon and one suffered by thousands of our soldiers: closed head injuries. As we on the bench struggled with how long or whether one had to be rendered uncon scious or what tests were sufficient to demonstrate the nature and severity of a closed head injury — including whether MRIs were legally cognizable evidence — the medical community was already a long way down the road in developing treatments and strategies for coping with these mere “mental, emotional,” or “psychiatric” injuries. But as a matter of medicine and law, there should be no difference medically or legally between an objectively demonstrated brain injury, whether the medical diagnosis is a closed head injury, PTSD, Alzheimer’s, brain tumor, epilepsy, etc. A brain injury is a “bodily injury.” If there were adequate evidence of a brain injury to meet the requisite evidentiary standards, i.e., objective medical proof of the injury, summary disposition was improper.
In sum, plaintiff here presented sufficient objective medical evidence to raise a material question of fact regarding whether he suffered a brain injury from the accident and whether such brain injury is an injury to the body. Consequently, the trial court erred by granting defendants summary disposition on this issue.
We reverse and remand to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
SERVITTO, PJ., concurred.
Plaintiff Lisa Allen also sought damages for loss of consortium.
As stated in Hardy, supra at 565 n 10, this phrase was formerly contained in MCL 500.3135(2), but is now contained in MCL 500.3135(3) pursuant to 1995 PA 222. | [
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ON REMAND
Before: DONOFRIO, EJ., and BANDSTRA and ZAHRA, JJ.
Per Curiam.
In an order issued on September 24, 2008, our Supreme Court vacated the portion of this Court’s earlier opinion per curiam that upheld the trial court’s assessment of 15 points for offense variable 10 (OV 10), MCL 777.40 (exploitation of a vulnerable victim), and remanded the case to this Court for reconsideration in light of People v Cannon, 481 Mich 152; 749 NW2d 257 (2008). On the basis of Cannon, we reverse.
I. UNDERLYING FACTS AND PROCEEDINGS
Defendant was convicted of one count of child sexually abusive activity, MCL 750.145c(2), one count of use of the Internet to communicate with another for the purpose of violating the statute prohibiting child sexually abusive activity, MCL 750.145d(l)(a), and three counts of use of the Internet to communicate with another for the purpose of attempting to distribute obscene matter to a minor, MCL 750.145d(l)(a), after a jury trial. Defendant communicated over the Internet with a person he thought was a 14-year-old girl named “Kelly,” but who in fact was an adult male special agent for the Attorney General. Defendant engaged in explicit sexual conversations with “Kelly,” sent “her” nude photographs of himself, and eventually arranged to meet “her” for the purpose of engaging in sexual activity. Defendant was arrested when he arrived at the predetermined meeting location. A search of defendant’s truck revealed an overnight bag, two condoms, personal lubricant, and an atlas.
At sentencing, the parties disagreed about the scoring of OV 10, MCL 777.40. That statute provides, in pertinent part:
(1) Offense variable 10 is exploitation of a vulnerable victim. Score offense variable 10 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) Predatory conduct was involved..........15 points
(b) The offender exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status .........................................10 points
(d) The offender did not exploit a victim’s vulnerability ...........................................0 points
(3) As used in this section:
(a) “Predatory conduct” means preoffense conduct directed at a victim for the primary purpose of victimization.
(b) “Exploit” means to manipulate a victim for selfish or unethical purposes.
(c) “Vulnerability” means the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation.
Defendant objected to the probation department’s scoring of OV 10 at 10 points, arguing that because no actual underage person was involved in this case, there was no victim to be exploited. The prosecutor argued that OV 10 should be scored at 15 points because defendant engaged in predatory conduct designed to persuade a person who he thought was an underage girl to participate in sexual activity with him. The trial court concluded that OV 10 should be scored at 15 points, reasoning that an actual victim was not a prerequisite to such scoring. The change in the scoring of OV 10 to 15 points (along with another scoring change that is not at issue) resulted in a sentencing guidelines recommended minimum term range of 45 to 75 months for the most serious offense, child sexually abusive activity.
The trial court sentenced defendant to concurrent terms of 45 to 240 months for child sexually abusive activity and use of the Internet to communicate with another for the purpose of violating the statute prohibiting child sexually abusive activity and 12 to 48 months for each count of use of the Internet to communicate with another for the purpose of attempting to distribute obscene matter to a minor.
Defendant appealed in this Court, and in People v Russell, unpublished opinion per curiam of the Court of Appeals, issued February 8, 2007 (Docket No. 264597), this Court affirmed defendant’s convictions and sentences. Considering defendant’s application for leave to appeal, our Supreme Court entered an order providing as follows:
By order of July 18, 2007, the application for leave to appeal the February 8, 2007, judgment of the Court of Appeals was held in abeyance pending the decision in People v Cannon, (Docket No. 131994). On order of the Court, the case having been decided on June 4, 2008, 481 Mich 152 (2008), the application is again considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we vacate that part of the Court of Appeals judgment addressing defendant’s argument regarding whether points for predatory conduct may be assessed for offense variable 10, MCL 777.40(3)(a) (exploitation of a vulnerable victim), where the victim is a police decoy, and we remand this case to the Court of Appeals for reconsideration of that issue in light of Cannon, supra. In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court. We do not retain jurisdiction. [People v Russell, 482 Mich 995 (2008).]
II. ANALYSIS
In Cannon, the defendant and his codefendants committed an armed robbery of a Burger King restaurant. The defendant was convicted of conspiracy to commit armed robbery, MCL 750.157a; MCL 750.529. At sentencing, the prosecutor argued that OV 10 should be scored at 15 points because the defendant engaged in predatory conduct, including waiting in a nearby vehicle until no customers were in the restaurant. The prosecutor asserted that the defendant and his codefendants specifically targeted the restaurant and intended that their actions would victimize the employees of the restaurant. The trial court assessed 15 points for OV 10, finding that the defendant engaged in predatory conduct because he could have signaled his codefendants to stop the robbery. Cannon, supra at 154-155. This Court affirmed the scoring of OV 10, concluding that the defendant’s actions constituted predatory conduct. This Court noted that the evidence showed that the defendant and his codefendants had planned the robbery in advance, parked their vehicle in a place where it would not be seen, and waited until all customers had left before entering the restaurant. Id. at 155-156.
The Supreme Court reasoned that the intent of OV 10 was “the assessment of points for the exploitation of vulnerable victims.” Id. at 157. The Court noted that the statute specifically states that zero points are to be assigned when the “ ‘offender did not exploit a victim’s vulnerability.’ ” Id. at 158, quoting MCL 777.40(l)(d). The Court concluded that “points should be assessed under OV 10 only when it is readily apparent that a victim was ‘vulnerable,’ i.e., was susceptible to injury, physical restraint, persuasion, or temptation.” Cannon, supra at 158. The Court thus emphasized the protection of vulnerable victims and sanctioning their exploitation. In other words, regardless of an offender’s subjective intent, if no vulnerable victim was in fact placed in jeopardy or exploited by an offender’s actions, OV 10 does not apply.
Under the analysis of Cannon, regardless of defendant’s intent, his conduct did not place any vulnerable victim in jeopardy because there was, in fact, no vulnerable victim to be jeopardized. The person with whom defendant communicated was not a vulnerable 14-year-old girl named “Kelly”; he was, instead, an adult special agent. Such a person would not qualify as a vulnerable victim under the factors set out in Cannon. Id. at 158-159. We conclude that, under these circumstances, no points can be assessed for OV 10.
The trial court erred by assessing sentencing guidelines points for OV 10. We vacate defendant’s sentences for child sexually abusive activity and use of the Internet to communicate with another to violate the statute prohibiting child sexually abusive activity, and we remand this case to the trial court for resentencing on those offenses. We do not retain jurisdiction.
We recognize that this is not the rule applicable to the elements of the criminal offenses at issue here. See People v Thousand, 465 Mich 149, 165-166; 631 NW2d 694 (2001); People v Cervi, 270 Mich App 603, 624; 717 NW2d 356 (2006).
Further, we note that, even if OV 10 could be applied against defendant, points could not be assessed against him for “predatory conduct,” which is defined to require “preoffense conduct.” MCL 777.40(3)(a). Cannon explained that the first question in determining whether points can be assessed for predatory conduct is whether the offender engaged in conduct before the commission of the offense. Cannon, supra at 160,162. Defendant’s interactions on the Internet with the person he believed to be a 14-year-old girl named “Kelly” constituted the offenses themselves; there was no preoffense conduct, before his Internet communications, that could constitute predatory conduct. | [
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Per Curiam.
Defendant appeals as of right his jury convictions of assault with intent to do great bodily harm less than murder, MCL 750.84, and possession of a firearm during the commission of a felony, MCL 750.227b. Defendant was sentenced to serve consecutive prison terms of 30 to 120 months for the assault conviction and two years for the felony-firearm conviction. We affirm.
Defendant’s convictions arose from a shooting incident that took place outside a home where a large party was in progress during the early morning hours of January 29, 2006. The victims of the shootings, Alfred Peterson and Matthew Blossey, were at the party, but had been asked to leave. As they left, one or both of them threatened to return with guns. Hearing these threats, Kevin Lijewski’s roommate, Shawn Galan, called Lijewski for a ride from the party. Defendant accompanied Lijewski to retrieve Galan. Defendant and Lijewski arrived at the party, located Galan, and were returning to Lijewski’s truck to leave when Peterson and Blossey arrived with two other people and in multiple vehicles. Defendant and Lijewski observed Blossey strike a guest with a bottle, so they walked back toward the house. Blossey then walked away, so defendant and Lijewski again started toward Lijewski’s vehicle to leave. Before they reached the vehicle, however, a group of people formed a semicircle around them. Peterson, who admittedly returned to the party intending to fight, struck Lijewski in the head, knocking him to the ground. After he fell, Lijewski saw Blossey running toward him while brandishing a pointy wooden stake. Lijewski fired warning shots into the ground. Defendant asserts that he, too, fired shots to defend Lijewski after Lijewski, who had been assaulted and was in danger, yelled for help. The shots struck Peterson and Blossey.
Defense counsel requested that the trial court instruct the jury, consistently with the recently enacted Self-Defense Act (SDA), MCL 780.971 et seq., that defendant did not have a duty to retreat before he engaged in defense of himself or of someone else under the circumstances presented in this case. The trial court rejected defense counsel’s request on the ground that the shootings occurred before the effective date of the SDA and, thus, the SDA was inapplicable. Consequently, the trial court gave the jury instructions consistent with the common-law rules regarding self-defense, including the duty to retreat.
Defendant’s sole argument on appeal is that the trial court erred by instructing the jury that defendant had a duty to retreat before using deadly force because the SDA applies retroactively to this case. We disagree.
Whether a statute applies retroactively presents a question of statutory construction, which this Court reviews de novo. Frank W Lynch & Co v Flex Technolo gies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001). The intent of the Legislature governs the determination whether a statute is to be applied prospectively or retroactively. Id. A statute is presumed to operate prospectively “unless the Legislature has expressly or impliedly indicated its intention to give it retrospective effect.” People v Russo, 439 Mich 584, 594; 487 NW2d 698 (1992). Stated differently, a statute is “ ‘presumed to operate prospectively unless [a] contrary intent is clearly manifested.’ ” Lynch, supra at 583, quoting Franks v White Pine Copper Division, 422 Mich 636, 671; 375 NW2d 715 (1985); see also People v Doxey, 263 Mich App 115, 121; 687 NW2d 360 (2004) (“ ‘[Amendments of statutes are generally presumed to operate prospectively unless the Legislature clearly manifests a contrary intent.’ ”) (citation omitted). However, an exception to this general rule is recognized if a statute is remedial or procedural in nature. Russo, supra at 594; People v Link, 225 Mich App 211, 214-215; 570 NW2d 297 (1997). A statute is remedial if it is designed to correct an existing oversight in the law or redress an existing grievance, or if it operates in furtherance of an existing remedy and neither creates nor destroys existing rights. Saylor v Kingsley Area Emergency Ambulance Service, 238 Mich App 592, 598; 607 NW2d 112 (1999); Link, supra at 214-215. A statute that affects or creates substantive rights is not remedial, and is not given retroactive effect, absent clear indication of legislative intent otherwise. Lynch, supra at 585.
Section 2(1) of the SDA provides, in part:
An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual. [MCL 780.972(1).]
In addition, § 3 of the SDA provides: “Except as provided in section 2, this act does not modify the common law of this state in existence on October 1, 2006 regarding the duty to retreat before using deadly force or force other than deadly force.” MCL 780.973. The shootings that gave rise to defendant’s arrest took place on January 29, 2006; the SDA did not become effective until October 1, 2006. As acknowledged by § 3 of the SDA, the statute altered the common law of self-defense concerning the duty to retreat. Therefore, even if the SDA perhaps could be characterized as partly remedial, it nevertheless created a new substantive right, i.e., the right to stand one’s ground and not retreat before using deadly force in certain circumstances in which a duty to retreat would have existed at common law. Thus, it does not apply retroactively absent an indication that such was the intention of the Legislature in passing the statute. Lynch, supra at 585 (“[W]e have rejected the notion that a statute significantly affecting a party’s substantive rights should be applied retroactively because it can also be characterized in a sense as ‘remedial.’ ”).
We conclude that the SDA in general, and MCL 780.972 in particular, apply prospectively only. The SDA contains no language indicating that the Legislature intended the act to apply retroactively. Enacting § 1 of 2006 PA 309 states specifically that the SDA “takes effect October 1, 2006.” This is an indication that the Legislature intended the provision to apply prospectively from that date. See Lynch, supra at 583-584. Additionally, enacting § 2 states that the SDA would not take effect unless other legislative bills, which became 2006 PA 310, 2006 PA 311, 2006 PA 312, 2006 PA 313, and 2006 PA 314, were also enacted into law. This, too, signals a legislative intent that the act apply only prospectively. See id. Further, the legislation cited in enacting § 2 relates to the same subject matter and thus is read in pari materia with the SDA. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998); Doxey, supra at 121. None of this legislation suggests any intent that it be applied retroactively. Therefore, all indications are that the Legislature intended the SDA to apply only prospectively. Doxey, supra at 121.
Section 2 of the SDA, MCL 780.972, affects substantive rights and, as such, cannot be classified as a remedial statute. Therefore, because the Legislature manifested no intent that it apply retroactively, it applies only prospectively, to offenses committed on or after its effective date. Because the incident that formed the basis of defendant’s convictions took place before the SDA’s effective date, defendant’s right to use deadly force in self-defense or defense of others was limited by a duty under the common law to retreat, and the jury instruction reflecting as much was appropriate.
We affirm.
Defendant was charged with assault with intent to do great bodily harm less than murder, felonious assault, MCL 750.82, and two counts of felony-firearm in connection with the shooting of Blossey. He was acquitted of those charges. Defendant’s convictions arose from the shooting of Peterson. Defendant was also convicted of felonious assault and felony-firearm in connection with the shooting of Peterson, but those convictions were dismissed at sentencing on the basis of double jeopardy.
Generally, the use of deadly force in self-defense is justified if a person “honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm.” People v Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990). However, unless attacked inside one’s own home, or subjected to a sudden, fierce, and violent attack, a person has a common-law duty to retreat, if possible, as far as safely possible. People v Riddle, 467 Mich 116, 118-121; 649 NW2d 30 (2002). Conversely, under § 2 of the SDA, there is no duty to retreat if the person has not committed or is not committing a crime and has a legal right to be where the person is at the time he or she uses deadly force. MCL 780.972(1). Section 2 of the SDA thus constitutes a substantive change to the right of self-defense.
These acts were codified at MCL 780.961, MCL 780.951, MCL 600.2922c, MCL 768.21c, and MCL 600.2922b, respectively. | [
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Per Curiam.
Petitioner, Ottawa County (the County), appeals as of right the circuit court’s order affirming the award of the Act 312 arbitration panel. Because we conclude that Act 312, MCL 423.231 et seq., is constitutional, an Act 312 arbitration panel may award non-economic benefits retroactively, and the arbitration panel’s finding that retroactive grievance arbitration was an issue in dispute during the collective bargaining sessions was supported by sufficient evidence, as was its reasoning to adopt the proposal by respondent, Police Officers Association of Michigan (POAM), of retroactive grievance arbitration, we affirm.
The instant appeal involves the County’s attempts to negotiate with POAM, which represents the County’s sheriffs detectives and road patrol deputies, a successor agreement to the parties’ collective bargaining agreement that expired on December 31, 2002. The County specifically objects to the Act 312 arbitration panel’s adoption of POAM’s proposal regarding retroactive grievance arbitration, which provided that “[t]he right to arbitrate grievances shall be retroactive to January 1, 2003[,] for any pending grievances, including those filed on or after January 1, 2003.”
i
The orders of an Act 312 arbitration panel are subject to judicial review in the circuit court, “but only for reasons that the arbitration panel was without or exceeded its jurisdiction; the order is unsupported by competent, material and substantial evidence on the whole record; or the order was procured by fraud, collusion or other similar and unlawful means.” MCL 423.242; Detroit v Detroit Fire Fighters Ass’n, Local 344, IAFF, 204 Mich App 541, 550; 517 NW2d 240 (1994). Substantial evidence is defined as “any evidence that reasonable minds would accept as adequate to support the decision; it is more than a mere scintilla of evidence but may be less than a preponderance of the evidence.” Becker-Witt v Bd of Examiners of Social Workers, 256 Mich App 359, 361; 663 NW2d 514 (2003) (quotation marks and citations omitted). This Court also reviews an order of an Act 312 arbitration panel under the standards set forth in MCL 423.242. Detroit v Detroit Police Officers Ass’n, 408 Mich 410, 480-483; 294 NW2d 68 (1980) (opinion by Williams, J.); Detroit Fire Fighters Ass’n, supra at 550-551, 551 n 10. In addition, this Court “may review an error of law that is substantial and apparent on its face.” Police Officers Ass’n of Michigan v Ottawa Co Sheriff (On Reconsideration), 264 Mich App 133, 136; 694 NW2d 757 (2004). Questions concerning the constitutionality and interpretation of a statute are reviewed de novo. Toll Northville Ltd v Northville Twp, 480 Mich 6, 10-11; 743 NW2d 902 (2008).
n
The County claims that Act 312 is unconstitutional. However, because our Supreme Court has stated that “Act 312 is clearly constitutional,” Local 1277, Metro Council No 23, AFSCME, AFL-CIO v Center Line, 414 Mich 642, 648; 327 NW2d 822 (1982), the County’s argument is without merit.
hi
The County also contends that Act 312 does not permit an arbitration panel to award noneconomic benefits, such as the right to grievance arbitration, retroactively. The County claims that the phrase “[fin-creases in rates of compensation or other benefits” in MCL 423.240 refers only to economic benefits. We disagree.
This Court previously held that an Act 312 arbitration panel could not award noneconomic benefits retroactively. Local 1917, Metro Council No 23, AFSCME v Wayne Co Bd of Comm’rs, 86 Mich App 453, 462-463; 272 NW2d 681 (1978). However, the Court in Local 1917, Metro Council addressed the 1969 version of MCL 423.240, which provided, in pertinent part:
Increases in rates of compensation awarded by the arbitration panel under section 10 may be effective only at the start of the fiscal year next commencing after the date of the arbitration award. If a new fiscal year has commenced since the initiation of arbitration procedures under this act, the foregoing limitation shall be inapplicable, and such awarded increases may he retroactive to the commencement of such fiscal year any other statute or charter provisions to the contrary notwithstanding.
Regarding the 1969 version of MCL 423.240, the Court stated:
The Legislature specifically speaks of retroactivity but only in regards to economic benefits. The Legislature was conspicuously silent on retroactivity of noneconomic benefits. We hold that had the Legislature intended for arbitration panels acting under the 1969 Act to have the power to grant retroactivity to the subject noneconomic provisions, [it] would have so provided. The Court is constrained to hold that the intent of the Michigan Legislature was not to grant such retroactivity. [Local 1917, Metro Council, supra at 463.]
However, the Legislature amended MCL 423.240, effective January 3, 1978. The statute now provides, in relevant part:
Increases in rates of compensation or other benefits may be awarded retroactively to the commencement of any period(s) in dispute, any other statute or charter provisions to the contrary notwithstanding. [Emphasis added.]
Because the Court in Local 1917, Metro Council addressed a different version of MCL 423.240 than is applicable to the present case, the Court’s holding in Metro Council is not determinative of the issue whether an Act 312 arbitration panel may award noneconomic benefits retroactively.
Rather, to determine whether an Act 312 arbitration panel may award noneconomic benefits retroactively, we must interpret the current version of MCL 423.240. This Court’s primary goal in interpreting a statute is to ascertain and give effect to the intent of the Legislature. Karpinski v St John Hosp-Macomb Ctr Corp, 238 Mich App 539, 542-543; 606 NW2d 45 (1999). The first criterion in determining the Legislature’s intent is the specific language of the statute. Walters v Leech, 279 Mich App 707, 709; 761 NW2d 143 (2008). If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and the statute must be enforced as written. Id. “[A] court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.” Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002). It is appropriate to consult a dictionary for terms that are not defined in the statute. Robinson v Ford Motor Co, 277 Mich App 146, 152; 744 NW2d 363 (2007).
Before the Legislature amended MCL 423.240, an Act 312 arbitration panel was only authorized to award “[increases in rates of compensation” retroactively. Following the amendment of MCL 423.240, an arbitration panel may award “[increases in rates of compensation or other benefits” retroactively. “[C]hanges in statutory language are generally presumed to reflect a change in meaning.” Karpinski, supra at 545. However, such changes can also demonstrate an attempt to clarify the meaning of a provision rather than change it. Ewing v Detroit, 237 Mich App 696, 703; 604 NW2d 787 (1999).
Construing MCL 423.240 “liberally,” as Act 312 mandates in MCL 423.231, we conclude that the Legislature, when amending MCL 423.240, intended to change the scope of the employment benefits that an Act 312 arbitration panel may award retroactively. “The word ‘or’ generally refers to a choice or alternative between two or more things.” Auto-Owners Ins Co v Stenberg Bros, Inc, 227 Mich App 45, 50; 575 NW2d 79 (1997). In addition, the word “other” is defined as “additional or further”; “different from the one mentioned”; and “different in nature or kind.” Random House Webster’s College Dictionary (1992). The word “benefit” is defined, in relevant part, as “something that is advantageous or good; an advantage.” Id. By inserting the phrase “or other benefits” into MCL 423.240, the Legislature expanded the authority of Act 312 arbitration panels to allow them to retroactively award additional benefits that are “different in nature and kind” from increased compensation rates. Accordingly, pursuant to the clear and unambiguous language of MCL 423.240, an Act 312 arbitration panel is not limited to awarding increased compensation rates, or even just economic benefits, retroactively. The statute, in referring to “other benefits,” makes no distinction between economic and noneconomic benefits. To limit the phrase “[increases in rates of compensation or other benefits” to include only economic benefits, as urged by the County, would be to read into the statute a limitation that is not contained in the statute’s unambiguous language. We are prohibited from reading such a limitation into the statute. Roberts, supra. Thus, because the Legislature has authorized an Act 312 arbitration panel to award “other benefits” retroactively, an arbitration panel may award noneconomic benefits retroactively.
The right to arbitrate grievances is clearly a benefit to the detectives and deputies represented by POAM. Grievance arbitration is “something that is advantageous or good” to them. It provides them an efficient and cost-effective method, presided over by those knowledgeable in the law and subject matter, to resolve their disputes with the County. Indeed, the County does not dispute that the right to grievance arbitration is a benefit to its detectives and deputies. Therefore, because the right to grievance arbitration is a benefit and the Legislature has provided Act 312 arbitration panels the authority to award noneconomic benefits retroactively, the arbitration panel was not without authority to award POAM the right to grievance arbitration retroactively.
rv
Finally, the County argues that, even if the arbitration panel had the authority to award the right to grievance arbitration retroactively, the arbitration panel’s award of retroactive grievance arbitration was not supported by substantial evidence on the record. First, the County claims that the arbitration panel’s finding that the issue of retroactive grievance arbitration was an issue in dispute during the collective bargaining negotiations was not supported by substantial evidence. Second, the County claims that the arbitration panel’s reasoning for adopting POAM’s retroactive grievance arbitration proposal is not supported by substantial evidence. We disagree with both of the County’s assertions.
The arbitration panel’s finding that retroactive grievance arbitration was an issue in dispute during the collective bargaining negotiations is supported by substantial evidence on the record. James DeVries, POAM’s business agent, testified that he made it “very clear” and “articulate[d]” to the County that the phrase “wages and benefits” contained in POAM’s proposal to continue the parties’ collective bargaining agreement for one year was “inclusive of the retroactivity for any grievances that occurred after the expiration of the contract.” DeVries further testified that POAM’s two final proposals regarding duration of the contract and retroactive grievance arbitration encompassed the discussions that he had with Richard Schurkamp, the County’s chief negotiator, and that the County had rejected POAM’s duration proposal. DeVries’s testimony, along with the fact that the parties were engaged in a separate lawsuit involving the issue of retroactive grievance arbitration, is evidence that reasonable minds would accept as adequate to support the arbitration panel’s finding that retroactive grievance arbitration was an issue in dispute during the collective bargaining negotiations. Becker-Witt, supra.
In addition, the arbitration panel’s reasoning for adopting the retroactive grievance arbitration proposal is supported by sufficient evidence on the record. In adopting the proposed, the arbitration panel concluded:
[I]t is noted that it seems apparent that the interests and welfare of the public would be better served by utilizing arbitration as a last step of the grievance procedure rather than parties resorting to litigation. Generally, although not always, arbitration is faster, less expensive and conducted by individuals who are especially knowledgeable in employment management affairs. Additionally, morale in the unit could possibly suffer and thus affect the public if members of the unit were treated as “at will” employees or forced to sue in order to realize rights preserved by statute.
This statement by the arbitration panel comports with Michigan’s public policy favoring arbitration. See MCL 423.231; Jozwiak v Northern Michigan Hosps, Inc, 207 Mich App 161, 165; 524 NW2d 250 (1994).
Further, the arbitration panel’s finding that other employers have not taken the County’s position, which essentially refuses postagreement grievance arbitration, is supported by the testimony of DeVries. DeVries testified that POAM represents approximately 400 bargaining units throughout the state and that he represents approximately 60 of those units. He testified that none of the employers of those 60 units, other than the County, refuses to proceed to grievance arbitration. While the County asserts that DeVries “had no personal knowledge of the position of other comparable counties on this issue” and that it introduced the contracts from “three comparable counties to examine their contrac tual provision,” we “may not reassess the wisdom of the arbitration panel or engage in a review de novo.” Detroit Fire Fighters Ass’n, supra at 551. The arbitration panel’s decision to adopt POAM’s proposal regarding retroactive grievance arbitration is supported by evidence that reasonable minds would accept as adequate to support the decision. Becker-Witt, supra.
Affirmed.
We reject the County’s argument that, because the Court decided Local 1917, Metro Council ten months after the amendment of MCL 423.240 took effect, the Court must have known that the statute had been amended to include the phrase “other benefits,” which explains why the Court spoke of economic and noneconomic benefits when the 1969 version of the statute did not contain the word “benefits.” The County’s claim regarding why the Court in Local 1917, Metro Council used certain language in its analysis is pure speculation. The Court interpreted the 1969 version of MCL 423.240, and nothing in its analysis suggests that its interpretation was influenced by the amended version of the statute.
Further, because the language of MCL 423.240 is unambiguous, we are required to decline the County’s request to examine the legislative history of the statute’s amendment. See Briggs v Oakland Co, 276 Mich App 369, 374; 742 NW2d 136 (2007).
The other litigation involving the parties and the issue of retroactive grievance arbitration was also brought before this Court. See Police Officers Ass’n of Michigan, supra. | [
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Sharpe, J.
This action was brought by the plaintiff to recover damages alleged to have been caused by acts “of gross negligence and mistreatment and malpractice” of the defendants and-their agents while she was in their care and under treatment in the defendant hospital. The trial resulted iii a disagreement of the jury. The defendant hospital thereafter moved for judgment upon the evidence and proofs submitted, and judgment was thereupon entered in its favor, pursuant to the provisions of Act No. 73, Pub. Acts 1927 (3 Comp. Laws 1929, § 14535). Plaintiff seeks review by writ of error.
Counsel for appellant have failed to comply with the requirements of Michigan Court Rule No. 69. We do not strike their brief from the files for this reason, but our action in this respect must not be treated as a precedent. The rule must be complied with.
The question presented is whether the hospital is liable to a patient for malpractice of its surgeons. In opening the argument in their brief, plaintiff’s counsel say:
“It is the contention of plaintiff in this cause that the defendant Henry Ford Hospital is not an eleemosynary institution. That is not a charitable organization. That while it is a corporation organized not for pecuniary profit, it does not come within the law of charitable organizations, and, therefore, it is liable for negligent acts of its employees and agents within the scope of their employment.”
If it is a charitable organization, decision is controlled by the holding of nonliability in Downes v. Harper Hospital, 101 Mich. 555 (25 L. R. A. 602, 45 Am. St. Rep. 427), and Pepke v. Grace Hospital, 130 Mich. 493. To determine this question, we must look to the manner in which it was organized and the way it has always been conducted. This hospital was incorporated on August 18, 1915, under Act No. 171, Pub. Acts 1903 (2 Comp. Laws 1915, § 9054 et seq.), entitled “An act for the incorporation of associations not for pecuniary profit.” Its purposes, as set forth in its articles of incorporation, are:
“To construct, complete, equip, maintain and conduct a hospital for the care and relief of indigent and other sick, infirm or injured persons, and the treatment of maternity cases; the study and teaching of the cause, nature, prevention and cure of various diseases, and the dissemination of knowledge relating thereto, and the erection, equipment and maintenance of all buildings and laboratories necessary or incidental thereto, upon land situated in the city of Detroit, in the county of Wayne, Michigan, and this day conveyed by Henry Ford to said corporation, in trust for said purposes.”
The incorporators were Henry Ford, Edsel B. Ford, Clara J. Ford, Ernest G-. Liebold, and Frank J. Sladen, the first four of whom were named as trustees or directors. By-laws were adopted providing for annual and special meetings; for the election of a board of four trustees, who should manage and control the business and property of the corporation; for filling vacancies in such board; for the duration of their term of office, and for the election of officers and prescribing their duties.
The money with which the hospital was built was contributed by Mr. and Mrs. Ford and their son, Edsel B. Ford. Their contributions up to and in- eluding the year 1927 (trial was had in 1928) amounted to over $12,000,000, of which about one-third was represented by operating deficit. The deficit for the year 1927 was $718,508.48. No other contributions have been received.
The word “charity” was defined by Mr. Justice Cooley in Allen v. Duffie, 43 Mich. 1, 7 (38 Am. Rep. 159), as follows:
“Charity is active goodness. It is doing good to our fellow men. It is fostering’ those institutions that are established to relieve pain, to prevent suffering, and to do good to mankind in general or to any class or portion of mankind.”
In both volumes of Words and Phrases, under the heading “Charity,” many definitions of this word will be found. That it has a well-understood meaning may be implied from the use of the word “charitable,” without defining it, in connection with the word “hospitals” in article 8, § 11, of our State Constitution, and in many of our statutes. It has a much broader significance when so used than in common parlance, when we are likely to apply it to alms-giving alone, and it ‘ ‘ embraces the improvement and promotion of the happiness of man.” New England Sanitarium v. Inhabitants of Stoneham, 205 Mass. 335, 342 (91 N. E. 385). The test as applied to a gift is whether it is charitable in its nature.
In Downes v. Harper Hospital, supra, it appeared that the organization had its origin in two deeds conveying property to certain persons in trust. The purpose was stated therein to be—
“The institution, erection, and maintenance of a hospital in the city of Detroit, or .in the immediate vicinity thereof, for the succor, .care, and relief of such aged, sick, poor persons who shall apply for the benefit of the same, and who shall seem to my trustees hereof to be proper subjects for such aid as their means will enable them to afford.”
The property was conveyed by the trustees to a corporation organized under Act No. 242, Pub. Acts 1863 (3 Comp. Laws 1915, § 10840 et seq.), enacted after the deeds were given. The court referred at some length to the manner in which it was conducted, which did not materially differ from the defendant hospital in that respect, and then said:
“It certainly follows that the fund cannot be indirectly diverted by the tortious or negligent acts of the managers of the fund, or their employees, though such acts result in damage to an innocent beneficiary. Those voluntarily accepting the benefit of the charity accept it upon this condition.”
It was further said:
“Several hospitals of this character exist in this State, founded by private munificence. Obviously, they would not have been founded if their donors had known, or ever supposed, that their charitable purposes might be thwarted by the verdicts of juries for the negligent acts of those who must necessarily be employed in the execution of the charity.”
The similarity between the purpose as expressed in the deed in the Downes Case and that in the articles of association of the Ford Hospital will be noticed. While the same language is not used, it is apparent that the same object was sought to be attained. In 30 C. J. p. 462, it is said:
“The test which determines whether a hospital is charitable or otherwise is its purpose, that is, whether it is maintained for gain, profit, or advantage, or not. And the question of whether a hospital is maintained for the purpose of charity or for that of profit is to be determined, in case the hospital is incorporated, not only from its powers as defined in its charter but also from the manner in which it is conducted.”
That persons without means to pay for their care and treatment were not refused admission clearly appears from the testimony of Israel R. Peters, the “executive head” of the hospital. If the patient “made some comment about not being able to pay to the original admitting clerk,” he was referred to Mr. Peters, in which case he tried to secure an adjustment under which the patient would pay a portion of the bill and the difference would be assumed by the hospital. He further said:
“Of course, in a great many instances they did not pay anything, and either expired or when they were discharged were not able to resume employment, or the family was a large one and they just didn’t have enough money to make ends meet. The result was that that was charged off. ’ ’
In Michigan Sanitarium & Benevolent Ass’n v. Battle Creek, 138 Mich. 676, 683, wherein the question of the exemption of the property of the plaintiff from taxation was involved, Mr. Justice Carpenter, speaking for the court, said:
“Such a corporation is sufficiently charitable to entitle it to the privileges of the act when the charges collected for services are not more than are needed for its successful maintenance.”
It seems clear that the Ford hospital was a charitable organization at the time plaintiff was a patient therein.
Counsel call attention to the fact that this corporation was not organized under the law providing for the incorporation of hospitals. While the provi sions of Act No. 242, Pub. Acts 1863 (3 Comp. Laws 1915, § 10840 et seq.), under which the Harper hospital was organized, appear in compilations since that time, and were not in terms expressly repealed until the enactment of the general corporation act (Act No. 84, Pub. Acts 1921, 2 Comp. Laws 1929, § 9943 et seq.), yet section 7 of Act No. 171, Pub. Acts 1903, as amended in 1905 (Act No. 163), and in 1909 (Act No. 148), in force at the time the Ford hospital was incorporated in 1915, contained this provision:
“Hereafter all new corporations not organized for profit and having no capital stock, except religious organizations * * * shall be organized under this act.”
Counsel for the plaintiff direct our attention to the habendum clause in the deed of conveyance from Mr. and Mrs. Ford to the corporation. After stating that the premises were conveyed for the purpose of maintaining and conducting a hospital thereon, it contained the following:
“Said land, appurtenances and all improvements thereon shall revert to first parties, their heirs, representatives and assigns, upon the failure of second party, its successors and assigns, to conduct and maintain said hospital thereon for a period of ninety days.”
They rely upon the following from 28 C. J. p. 646:
“A condition attached to a gift, that upon the happening of a certain event the property shall revert to the donor, renders the gift void.”
The effect of this reversionary provision is not involved in this case. It seems clear, however, that the rule as stated is not applicable. If so, then the corporation has no property out of which any judgment recovered by plaintiff could be satisfied. Under the language used, a determinable fee was created. Epworth Assembly v. Railway, 236 Mich. 565.
The judgment is affirmed.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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Per Curiam.
Plaintiff, Church & Church, Inc. (Church), appeals by leave granted the trial court’s entry of summary disposition in third-party defendants AKRS Properties Investment, LLC, and Ban Cassab’s favor and the dismissal of plaintiffs claims seeking judicial foreclosure of its mortgages on five real properties. Defendant Fox Brothers Development Company appeals by leave granted the trial court’s entry of summary disposition in favor of cross-defendants Satish and Aarti Doshi (the Doshis) concerning a mortgage Fox Brothers held on the Doshis’ real property. Defendant C & R Plumbing & Heating, Inc. (C & R), appeals, also by leave granted, the trial court’s order of summary disposition in the Doshis’ favor discharging C & R’s construction lien on the Doshis’ property and its denial of C & R’s request to amend its complaint to add a claim against cross-appellee, the Homeowner Construction Lien Recovery Fund. We affirm.
This case finds its origin in a lawsuit filed by Church against a builder, Gemcraft Homes, Inc., for Gemcraft’s failure to pay Church for building materials it had supplied to Gemcraft for improvements to numerous properties in southeast Michigan. Church recorded liens and mortgages on certain properties for which materials were furnished. Seeking foreclosure of its mortgages and liens in the lawsuit, Church named the other lienholders, mortgagees, and those who otherwise had an interest in the properties as necessary defendants in the lawsuit, including Fox Brothers and C & R.
This case was eventually consolidated in the trial court with several other cases in which contractors, subcontractors, and suppliers had sued Gemcraft for, among other things, defaulting on mortgages and defaulting on contracts or subcontracts for materials or services provided in connection with the construction of multiple properties. These consolidated cases contain numerous claims, cross-claims, and counterclaims, and various parties sought foreclosure on mortgages and liens on a multitude of properties in the proceedings. The present appeals concern themselves with several of these foreclosure claims.
CHURCH’S APPEAL
Relevant to this appeal, Church held construction liens on five properties owned by Gemcraft. Before initiation of this lawsuit, however, Church agreed to release its construction liens in exchange for the execution of mortgages on the properties in Church’s favor. Gemcraft apparently defaulted on the mortgages, and the five properties were among those for which Church sought judicial foreclosure in its lawsuit against Gem-craft.
Defendant Charter One Bank (Charter One) also held mortgages on these five properties and had recorded its mortgages before Church’s mortgages were recorded. Charter One was named as a defendant in Church’s lawsuit and filed a cross-claim against Gem-craft for, among other things, breach of contract and additionally sought judicial foreclosure on the five properties.
In April 2004, before the Church lawsuit was resolved, Charter One dismissed the foreclosure count of its cross-claim against Gemcraft. Approximately one month later, Charter One assigned its interest in and sold its loans on the subject properties to third-party defendant FGR Properties, LLC (FGR). FGR thereafter foreclosed on the properties by advertisement, and the properties were ultimately quitclaimed to AKRS Properties Investment, LLC, and its owner/president Ban Cassab.
In 2006, Church filed a motion for partial summary disposition, asserting that it was entitled to judicial foreclosure of its mortgages on the five properties, that the sale of the properties by FGR did not extinguish plaintiffs interest in the properties, and that the foreclosure by advertisement should be declared void. The trial court ultimately granted AKRS and Cassab’s coun termotion for summary disposition, dismissing Church’s claims with respect to the five properties.
This Court reviews de novo a tried court’s decision regarding a motion for summary disposition. Arthur Land Co, LLC v Otsego Co, 249 Mich App 650, 661; 645 NW2d 50 (2002). A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual support for a claim. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). When reviewing a motion under this subrule, the court must consider all the documentary evidence in the light most favorable to the nonmoving party. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.” Id.
On appeal, Church contends that MCL 600.3204 provides for foreclosure by advertisement (otherwise known as statutory foreclosure) only if that party has not already sued on the underlying debt. According to Church, Charter One’s cross-claim against Gemcraft for breach of contract is an action to recover the debt secured by the mortgages and Charter One’s dismissal of only the judicial foreclosure claim precluded FGR, pursuant to MCL 600.3204, from foreclosing on the properties by advertisement. We disagree.
MCL 600.3204(1) provides as follows:
A party may foreclose a mortgage by advertisement if all of the following circumstances exist:
(a) A default in a condition of the mortgage has occurred, by which the power to sell became operative.
(b) An action or proceeding has not been instituted, at law, to recover the debt secured by the mortgage or any part of the mortgage; or, if an action or proceeding has been instituted, the action or proceeding has been discontinued; or an execution on a judgment rendered in an action or proceeding has been returned unsatisfied, in whole or in part.
(c) The mortgage containing the power of sale has been properly recorded.
(d) The party foreclosing the mortgage is either the owner of the indebtedness or of an interest in the indebtedness secured by the mortgage or the servicing agent of the mortgage.
There is no question that Charter One filed a cross-complaint against Gemcraft for breach of contract because of Gemcraft’s default on mortgages and loan documents concerning the properties at issue and for foreclosure of the mortgages held on the properties. However, Charter One dismissed its foreclosure claim and thereafter assigned its interest in and sold its loans on the subject properties to FGR. Despite Church’s contrary contention, Charter One’s actions in divesting itself of any and all rights, title, and interest in the subject properties acted as an implied dismissal of all its claims concerning the properties.
In Saph v Auditor General, 317 Mich 191, 202; 26 NW2d 882 (1947), an individual, who brought an action to cancel taxes on real property he held, deeded the property to another during the pendency of the lawsuit. Noting that the plaintiff had divested himself of all title and interest in the property involved in the lawsuit, our Supreme Court declared, “[a] court of equity will not permit a party who has voluntarily divested himself of any claim to continue litigating.” Our Supreme Court has previously held that with regard to a party’s assignment of his or her interest in a property that was the subject of a lawsuit, while not operating strictly as an abatement of the lawsuit, “its effect was much the same, as it left no party complainant before the court competent to prosecute it.” Webster v Hitchcock, 11 Mich 56, 58 (1862). The Court faced a similar situation in Brewer v Dodge, 28 Mich 359, 360-361 (1873):
It appears from complainant’s own showing that in June 1870, he conveyed the premises in dispute to one Charles E. Ritson. Ritson never made himself a party to the suit. By that conveyance complainant ceased to have any further interest in the controversy. If any one was injuriously affected by any subsequent proceedings, it was Ritson, and not complainant. It was no concern of his after he had sold out all his interest. A court of equity must have the real parties before it, and will not permit a party who has voluntarily divested himself of any claim on his owm behalf, to continue litigating. As soon as a complainant assigns his rights, the suit, as to him, ceases, and becomes as defective for want of a complainant as if it had abated by his death.
Here, Charter One dismissed its foreclosure claim. The breach of contract action was based on Gemcraft’s failure to pay the mortgages — the same basis as the foreclosure claim. When Charter One assigned the mortgages and all of its rights, title, and interest as mortgagee to FGR, it no longer had any interest whatsoever in the mortgages. The breach of contract claim being based on the mortgage documents, and Charter One no longer having an interest in the mortgages, Charter One had no claim to continue pursuing against Gemcraft.
That a party has divested itself of interest in the real property that is the subject of the lawsuit does not, however, require dismissal of the lawsuit. As indicated by Church, Charter One could have continued with the breach of contract claim against Gemcraft — the operative word here being “could.” MCR 2.202(B) governs the substitution of parties when there has been a transfer or change of interest and provides, in relevant part:
If there is a change or transfer of interest, the action may be continued by or against the original party in his or her original capacity, unless the court, on motion supported by affidavit, directs that the person to whom the interest is transferred be substituted for or joined with the original party, or directs that the original party be made a party in another capacity.
Notably, the use of the term “may” instead of “shall” in this court rule indicates discretionary rather than mandatory action. Murphy v Ameritech, 221 Mich App 591, 600; 561 NW2d 875 (1997). Thus, Charter One, as the original party, could have continued in the breach of contract action. There is no allegation, however, that any action on the breach of contract claim continued after Charter One assigned the mortgages to FGR, and there is no assertion that anyone moved to have FGR added or substituted as a party. Charter One’s claim for breach of contract could thus be deemed discontinued, and FGR was free to pursue foreclosure by advertisement pursuant to MCL 600.3204.
Church next asserts that the foreclosure by advertisement should have been declared void, because Michigan law does not allow for foreclosure by advertisement of a property when a judicial foreclosure on the same property is pending. We disagree.
We would first note that Church stipulated the dismissal of all its claims against FGR. FGR having been the party who foreclosed on the properties through advertisement, it is questionable whether Church’s claims of an invalid foreclosure by advertisement have any merit. Nevertheless, we will address the argument.
The right to foreclosure by advertisement is statutory. Calaveras Timber Co v Michigan Trust Co, 278 Mich 445, 450; 270 NW 743 (1936). Such foreclosures are a matter of contract, authorized by the mortgagor, and ought not be hampered by an unreasonably strict construction of the law. Cramer v Metro S&L Ass’n, 401 Mich 252, 261; 258 NW2d 20 (1977). Harsh results may and often do occur because of mortgage foreclosure sales, “but we have never held that because thereof, such sale should be enjoined, when no showing of fraud or irregularity is made.” Calaveras Timber Co, supra, at 454.
Church contends that it was the intent of the Michigan Legislature, in enacting MCL 600.3201 et seq., to promote the election of remedies involving foreclosures of the same property. Church cites no law, however, to support this assertion. Moreover, that is not an entirely correct statement regarding the purpose of the statute:
The [precursor] statute [to MCL 600.3204] forbids the beginning of a statutory foreclosure if any “suit or proceeding shall have been instituted at law, to recover the debt then remaining secured” unless “the same has been discontinued, or that an execution upon the judgment rendered therein has been returned unsatisfied in whole or in part.” [1871 CL] 6913. This statute clearly refers to suits on the debt, and not to foreclosure proceedings on the mortgage, and its object is to prevent proceedings, at the same time to prosecute the personal liability of the mortgagor and pursue the land. It is to prevent a simultaneous double vexation, which was allowed in England, but not generally here. [Lee v Clary, 38 Mich 223, 227 (1878).]
According to United States v Leslie, 421 F2d 763, 766 (CA 6, 1970), “[t]he language of Lee v. Clary is unmistakably clear that it is the purpose of the statute to force an election of remedies which if not made would create the possibility that the mortgagee could foreclose the mortgage and at the same time hold the maker of the note personally liable for the debt. Accord, Larzelere v. Starkweather, 38 Mich. 96, 105 (1878).”
More correctly stated, then, the intention of the Legislature with respect to the foreclosure statutes was to force an election of remedies by a mortgagee concerning a single debt: i.e., the same mortgagee cannot simultaneously maintain a lawsuit for judicial foreclosure and a foreclosure by advertisement, because it would allow for double recovery on the same debt. The statute thus serves to protect the mortgagor — not another mortgagee, as argued by Church.
Here, there is no election of remedy issue because Charter One and Church are two different mortgagees pursuing two different mortgage debts. There is no concern, then, that the mortgagor would be forced to pay a double recovery on the same debt. Moreover, we are directed to no authority that limits one mortgagee’s remedy election to that chosen by a separate mortgagee.
That the Legislature intended to limit foreclosure proceedings in the manner suggested by Church is also not borne out by the statutory language in the foreclosure statutes. MCL 600.3204 provides that a party may foreclose if a default on the mortgage has occurred and an action at law has not been instituted to recover the debt secured by the mortgage or the action or proceeding has been discontinued. Use of the word “the” rather than “a” suggests that the Legislature did not concern itself with multiple mortgagees pursuing different debts secured by the same property.
MCL 600.3105(2), which governs judicial foreclosures, similarly provides:
After a complaint has been filed to foreclose a mortgage on real estate or land contract, while it is pending, and after a judgment has been rendered upon it, no separate proceeding shall be had for the recovery of the debt secured by the mortgage, or any part of it, unless authorized by the court.
By its terms, MCL 600.3105 only prohibits a separate proceeding for recovery of a debt secured by a mortgage if a proceeding has already been initiated to recover the same debt secured by the same mortgage. Again, use of the word “the” before “debt” and “mortgage” limits a party holding a single debt secured by a single mortgage to the election of either judicial or statutory foreclosure by advertisement to prevent double recovery on the same debt.
Additionally, Church was not left without recourse because of FGR’s election of foreclosure by advertisement. Church has not contended that it was unaware of the foreclosures by advertisement. In fact, an FGR representative submitted an affidavit indicating that during its negotiations with Charter One to obtain the properties at issue, he was in regular contact with Church’s counsel and advised counsel of FGR’s intent to purchase the properties. The foreclosure of the properties was thereafter held by advertisement. Church, then, could have sought to enjoin the sales in court, or could also, as it did here, have sought to have the foreclosures declared void. It could also have redeemed the properties after the foreclosures within the redemption period, because a junior mortgagee retains the right to redeem from the mortgage sale by paying the amount due on the senior mortgage with interest. See, e.g., Titus v Cavalier, 276 Mich 117, 120; 267 NW 799 (1936).
Church also argues that priority of its and Charter One’s mortgages on the properties was an unresolved issue in the judicial action, so that the foreclosure by advertisement was inappropriate. Church asserts that it is not asking this Court to determine priorities, but that the proper forum for such a determination is in the lower court. The trial court, however, did address and resolve the issue of priority in its October 11, 2006, opinion and order. The trial court noted:
... Plaintiff does not dispute that the interest it seeks to enforce in this action was acquired after the Bank acquired and recorded its mortgage. Rather, Plaintiff argues that its claim should be treated as if it predated the Bank’s claim under the doctrine of equitable subrogation. This Court disagrees. Plaintiff had an opportunity to ensure that its claim was superior to the bank’s, but chose to subordinate its claim by converting it to a mortgage and recording if after the bank recorded its mortgage. In this context, equitable subrogation is not appropriate.
According to the trial court, then, there was no cognizable dispute regarding priority. Church was well aware that it recorded its mortgages on the properties after Charter One recorded its mortgages and thus possessed mortgages junior to those of Charter One. The holder of a real estate interest who first records his or her interest generally has priority over subsequent purchasers. Richards v Tibaldi, 272 Mich App 522; 726 NW2d 770 (2006). Church’s argument (here and in the trial court) that its admittedly discharged construction liens should somehow be construed as having priority is without support. There being no priority dispute with regard to the mortgages held by Church and Charter One and there being no dispute regarding the amount of the mortgages, we affirm.
FOX BROTHERS’ APPEAL
Fox Brothers’ appeal concerns a single parcel of property, known as 7 Waltonshire, that was originally owned by Gemcraft and for which Gemcraft served as general contractor. According to Fox Brothers, Gem-craft granted it a mortgage on this property in the amount of $47,000 to secure its credit account with Fox Brothers (which provided windows, siding, and roofing on several of Gemcraft’s projects). The mortgage was recorded in 2001 and provides that the mortgage is intended to secure the payment under the mortgage note of the sum of $47,000. A promissory note executed on the same date as the mortgage provides that “[t]his Mortgage Note is secured by a mortgage granting security interest in three (3) parcels of land” and describes the three parcels, one of which is 7 Walton-shire.
In January 2003, Gemcraft and Fox Brothers entered into a security agreement whereby Fox Brothers agreed to release a secured interest on one of the three properties referenced in the promissory note and Gemcraft agreed, in turn, to amend the secured interest Fox Brothers had on the other two properties referenced in the promissory note so that Fox Brothers was secured against each property separately in the amount of $47,000, with such amendment retroactive to the initial date of the promissory note. In March 2003, a first amended mortgage note and mortgage reflecting this agreement were executed. Neither of the amended documents was recorded.
Sterling Bank and Trust also held a mortgage on 7 Waltonshire and foreclosed on the same by advertisement while the Church lawsuit was pending. Sterling Bank then sold 7 Waltonshire to the Doshis by covenant deed. The Doshis then became involved in the lawsuit, and summary disposition motions were eventually brought by parties with claims against 7 Waltonshire, including a motion by Fox Brothers seeking a ruling that it may foreclose on the property. The Doshis, however, claimed that the terms of the 2001 agreement between Gemcraft and Fox Brothers were satisfied and that any claim of an interest in 7 Waltonshire by Fox Brothers was thus discharged. The Doshis further claimed that they were bona fide purchasers with respect to the 2003 unrecorded amended mortgage and note between Gemcraft and Fox Brothers. The trial court granted summary disposition in favor of the Doshis, finding that they were bona fide purchasers for value of 7 Waltonshire.
Fox Brothers now contends that because the Doshis purchased 7 Waltonshire from Sterling Bank well after the Fox Brothers recorded their original mortgage on the property, the Doshis, were on notice of an interest held by Fox Brothers in the property and could not be bona fide purchasers for value with regard to Fox Brothers. We disagree.
Michigan’s race-notice statute provides:
Every conveyance of real estate within the state hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded. The fact that such first recorded conveyance is in the form or contains the terms of a deed of quit-claim and release shall not affect the question of good faith of such subsequent purchaser, or be of itself notice to him of any unrecorded conveyance of the same real estate or any part thereof. [MCL 565.29.]
This section applies to mortgages. Michigan Fire & Marine Ins Co v Hamilton, 284 Mich 417, 419; 279 NW 884 (1938).
A person takes in “good faith” if he or she takes without notice of a defect in the vendor’s title. Michigan Nat’l Bank & Trust Co v Morren, 194 Mich App 407, 410; 487 NW2d 784 (1992). “Notice” in the context of real estate law can be actual or constructive and has been defined by our Supreme Court as follows:
When a person has knowledge of such facts as would lead any honest man, using ordinary caution, to make further inquiries concerning the possible rights of another in real estate, and fails to make them, he is chargeable with notice of what such inquiries and the exercise of ordinary caution would have disclosed. [Kastle v Clemons, 330 Mich 28, 31; 46 NW2d 450 (1951).]
There is no question that Fox Brothers and Gemcraft were free to amend or extend their agreement concerning the debt owed Fox Brothers and the mortgage securing the debt. “It is well settled by the weight of authority that the parties to a mortgage originally intended to secure a particular debt may extend the security to the payment of a different debt or future advances as far as their respective rights are concerned.” Riess v Old Kent Bank, 253 Mich 557, 562-563; 235 NW 252 (1931). The note, then, for additional debt could certainly be enforceable against Gemcraft. The issue presented here, however, is the effect on a third party of an unrecorded change to the debt.
The original mortgage and note indisputably provided for the payment of a single $47,000 debt, which was secured by interests in three parcels of land, one of which was 7 Waltonshire. The mortgage being duly recorded in 2001, the Doshis purchased 7 Waltonshire subject to the 2001 mortgage. However, because the 2003 mortgage and underlying note that expanded the debt were not recorded, the Doshis had no actual notice of such change. Fox Brothers argues that because the original mortgage was recorded and this litigation was pending, the Doshis should have made inquiry into the debt underlying the mortgage and litigation to determine whether the debt remained the same. However, Fox Brothers provides no authority suggesting that the Doshis had a legal duty to undertake such an inquiry. Because the Doshis received a covenant deed from Sterling Bank and the amended mortgage was not recorded as required by statute, and because the fact that a lawsuit was pending, absent any suggestion that the Doshis knew or should have suspected that the pending litigation involved anything other than what was contained in the public record, would not serve to give the Doshis constructive notice, we affirm the trial court’s finding that the Doshis were bona fide purchasers for value of 7 Waltonshire with respect to the amended mortgage. The amended mortgage is thus void as against the Doshis.
In addition, because the only mortgage enforceable against the Doshis provided for a single $47,000 debt secured by 7 Waltonshire and two other properties and it is undisputed that Fox collected more than $47,000 from the sale of the other two properties, the first mortgage could be construed as paid in full and thus discharged.
C & R’S APPEAL
C & R’s claim on cross-appeal also relates solely to 7 Waltonshire. C & R was hired by Gemcraft to install rough plumbing and plumbing fixtures in a number of Gemcraft’s projects, including 7 Waltonshire. C & R received partial payment from Gemcraft for its services on 7 Waltonshire and recorded a lien against the property on August 20, 2002, for the outstanding balance of $7847.50. C & R was named in the Church lawsuit as a defendant and as an interest holder in 7 Waltonshire and filed a cross-claim for foreclosure on its construction lien.
The Doshis eventually moved for summary disposition, seeking to discharge all construction liens on 7 Waltonshire, asserting, with respect to C & R’s lien, that it did not timely file its foreclosure action, thereby barring enforcement of its lien pursuant to MCL 570.1117. C & R offered no response to this particular argument, but moved to amend its complaint to add a claim against the Homeowner Construction Lien Recovery Fund. See MCL 570.1201. The trial court granted summary disposition in the Doshis’ favor and discharged C & R’s lien, noting that because C & R did not address the statute of limitations argument, summary disposition based on the statute of limitations was appropriate. The trial court also denied C & R’s request to amend its complaint. We affirm.
MCL 570.1117 states, in relevant part:
(1) Proceedings for the enforcement of a construction lien and the foreclosure of any interests subject to the construction lien shall not be brought later than 1 year after the date the claim of lien was recorded.
(4) Each person who, at the time of filing the action, has an interest in the real property involved in the action which would be divested or otherwise impaired by the foreclosure of the lien, shall he made a party to the action.
Until a lienholder files a cross-claim and notice of lis pendens in a pending suit, he has not begun the proceedings required by statute for the enforcement of his liens. L J Mueller Furnace Co v Wayne Circuit Judge, 226 Mich 672; 198 NW 248 (1924). The burden of proof is on a plaintiff to show compliance with statutory requirements necessary to establish a right of action to enforce a mechanic’s lien. Skyhook Lift-Slab Corp v Huron Towers, Inc, 369 Mich 36; 118 NW2d 961 (1963).
Here, it is undisputed that C & R recorded an amended construction lien with respect to 7 Walton- shire on August 20, 2002. It is also undisputed that on February 28, 2003, Clinton Valley Title Company recorded an affidavit of lost document, indicating that a mortgage loan had previously been closed by Gemcraft in favor of Sterling Bank and Trust on 7 Waltonshire. It is further undisputed that C & R filed its cross-complaint seeking foreclosure of its construction lien on 7 Waltonshire on June 6, 2003, and did not name Sterling Bank as a party in its complaint. The above being true, the court action to foreclose on the lien was not effective with respect to the real interests of unnamed parties that should have been named (Sterling Bank). This results in extinguishing C & R’s claim of lien because any future foreclosure action would be beyond the one-year limitations period under the Construction Lien Act. MCL 570.1117. The trial court’s ruling with respect to C & R’s lien on 7 Waltonshire is thus affirmed.
With respect to C & R’s argument that it should have been granted leave to amend its complaint, we note that this Court will reverse a trial court’s decision on a motion to amend a complaint only where the trial court abused its discretion. Dampier v Wayne Co, 233 Mich App 714, 721; 592 NW2d 809 (1999). Leave to amend a complaint should be freely given when justice so requires. MCR 2.118(A)(2). Leave to amend should be denied only for particularized reasons, such as undue delay, bad faith, or dilatory motive on the movant’s part, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or where amendment would be futile. Phinney v Perlmutter, 222 Mich App 513, 523; 564 NW2d 532 (1997).
The Homeowner Construction Lien Recovery Fund (MCL 570.1201) was created to address the situation where potential lien claimants have done everything required of them under the Construction Lien Act, MCL 570.1101 et seq., but are precluded from recovering because of, for example, a homeowner’s prior payment to a contractor. Erb Lumber, Inc v Gidley, 234 Mich App 387, 394; 594 NW2d 81 (1999). In such situations, they may recover the amount of their lien from the Homeowner Construction Lien Recovery Fund. Id. To that end, MCL 570.1203(4) provides:
A subcontractor, supplier, or laborer who seeks enforcement of a construction lien on a residential structure through foreclosure shall join the fund as a defendant in the foreclosure action within the period provided in section 117(1). The subcontractor, supplier, or laborer shall serve a summons and complaint on the office of the fund administrator within the department by certified or registered mail or by leaving a copy at the office. The failure to serve a summons and complaint under this subsection bars recovery from the fund. After a defendant is served with a summons and complaint in an action to foreclose a construction lien, the department may intervene in the action as a party defendant with respect to other construction liens.
Section 117(1) provides that “[proceedings for the enforcement of a construction lien and the foreclosure of any interests subject to the construction lien shall not be brought later than 1 year after the date the claim of lien was recorded.” MCL 570.1117(1).
While C & R filed its cross-complaint seeking foreclosure of its construction lien on 7 Waltonshire within one year of when it recorded the lien, C & R does not dispute that it failed to name the Homeowner Construction Lien Recovery Fund as a party in its initial cross-complaint. Because MCL 570.1117 serves as a statute of limitations and unequivocally requires that the fund be named as a party within that limitations period, and the limitations period for bringing a claim against the fund had passed, it would be futile for the trial court to have granted C & R’s motion to add the fund as a party.
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Fead, J.
April 24,1930, on petition of a majority of the board of directors, filed March 7th, under 3 Comp. Laws 1929, § 15310 et seq., the New Way Motor Company, a corporation'engaged in the manufacture of small gasoline engines at Lansing, was decreed dissolved and a permanent receiver appointed. Certificate of dissolution was filed with the secretary of State May 9th.
October 3d, on petition of the receiver, the court gave him leave to sell the assets at private or public sale, at his discretion, subject to confirmation by the court. November 25th he reported a bid of $75,000 cash and assumption of $32,740.09 real estate taxes, for all the assets except cash, bills and accounts receivable, made by three indorsers of the corporation notes to banks, acting for themselves and other indorsers. The court ordered hearing December 10th on acceptance or rejection of the bid, and directed the receiver to give ten days’ mail notice of hearing to stockholders and creditors and to advertise for additional bids, and “that such addi tional bids may be considered by tbe court at the time of said hearing.” Notices were mailed November 26th.
Claims were allowed December 9th. On the same day, a group of ten stockholders, holding over 55 per cent, of the stock, filed a petition, under 3 Comp. Laws 1929, § 15325, setting up a proposed plan of reorganization and asking that the assets be returned to the corporation. December 10th a creditors’ committee, representing over $70,000 of the $88,000 trade claims, filed consent to the plan of reorganization, if it should be approved by the court and the property returned to the corporation. The committee was authorized by the creditors to consent to reorganization on condition that the corporation be continued as a going concern, with a reasonable amount of working capital to permit of increasing volume and earnings. December 10th the group of stockholders filed objections to confirmation • of the sale of assets on the grounds of inadequacy of price, failure of the receiver to properly advertise the sale, and pendency of the petition for return. No objections to confirmation were presented by creditors.
Hearing was had December 10th, considerable testimony was taken of the value of the property, the advisability of accepting the bid, and the status of the reorganization plan. Continuances were had from day to day, until December 15th, to permit the objecting stockholders to file a bond assuring an equal or larger bid within 60 days. The bond not being filed, and counsel for objectors announcing they had decided not to submit a bond, the court made an order confirming the sale on December 16th. There was no claim that objectors were financially unable to give the bond.
December 26th present counsel • for appellants came into the case and filed a motion to set. aside the order confirming sale and for a hearing on the petition for return of assets to the corporation. January 2,1931, the motion was denied. The group of stockholders and two members of the creditors’ committee' have appealed from the orders. of December 16th and January 2d.
The value of the assets was problematical, especially in view of the business depression. There was testimony that the bid was fair under the conditions. ■ The bidders had a' reorganization plan in which they valued the property at $250,000. Appellants’ estimates were between $500,000 and $600,000. Upon the testimony a specific finding of'value would-be largely a guess. Possibly the property would be worth appellants’ estimates to an established and profitable concern, while as a basis of a corporation which requires capitalization from the public and development of a paying business the bidders’ valuation might not appear ultraconservative. The debts were, in round numbers, personal taxes of $14,000, real estate taxes, $32,700, general trade claims, $88,000, bank loans indorsed by the bidders and their associates, $121,000, a total of $256,000.
Appellants contend the 13 days’ notice of confirmation of sale was insufficient because 14 days’ notice of public sale is required under 3 Comp. Laws 1929, § 15355. “Public sale” under that section is synonymous with “public auction” under section 15354. While sale on bids may sometimes be equivalent to a public sale or auction (In re Nevada-Utah Mines & Smelters Corp., 198 Fed. 497; Dulin v. National City Bank [Ind. App.], 130 N. E. 426), the sale here was private and was so treated by the court in the proceedings. Moreover, the point was waived by appellants because not made at the hearing.
Appellants contend the sale was not properly advertised, both in extent of territory and in failing to set up the attractive features of the property. The receiver testified he previously had pursued all opportunities to interest buyers. There was no claim of bad faith on his part. The sale was advertised several times in two Detroit, one Chicago, and two Lansing daily papers. Appellants did not suggest a paper or locality in which the receiver could have advertised with a greater probability of attracting prospective purchasers than through the mediums he used. Upon such matters, mere complaint is not sufficient. Criticism should be constructive and enable the court to determine whether other methods were likely to have produced better results. Both because of this and because the advertisement was not required by law for private sale but was done in obedience to the order of court, we cannot say the court abused its discretion in holding it sufficient.
Appellants further contend the sale price was inadequate. In circuit court, this objection was made only by the group of stockholders, who would lose nothing by sale at a low price and who apparently could not be benefited by a new sale because there appeared to be no possibility of a sale at sufficient price to pay all the debts and leave a balance for stockholders. This impaired the force of the objection.
Estimates of the value of manufacturing plant property, of an unsuccessful and dissolved corporation, in hard times, are more or less theoretical. Drastic losses on receiver’s sale of such property are common, if not universal. There was pointed out no possible outside market for the property. Purchasers reasonably could be looked for only among creditors or stockholders interested in avoiding loss, by purchasing at a figure which would enable them to recoup. Of such were the bidders at bar. Appellants’ witnesses were able to name no possible or prospective other buyers. A chance for sale elsewhere was purely speculative. Mere estimates of value cannot prevail against the facts of the situation, especially the fact that the appellants did not care to themselves assume the risk of being required to purchase the property at the bid price. The hazard of a new sale, had the bid been refused and not renewed by the same parties, was too great to require the court to refuse confirmation without some assurance from appellants for the protection of creditors. It cannot be said the court abused its discretion, nor, under the situation, that the value was so inadequate as to shock the conscience of the court.
It is a fair inference from the record that the foregoing objections to the sale were urged by appellants, principally as a leverage to move the court to grant the petition to return the property to the corporation. This presents the real issue.
The court may vacate an order of dissolution and revive a corporation. 14A C. J. p. 1133. 3 Comp. Laws 1929, § 15325, is inclusive in its terms, and, we think, is applicable to dissolution proceedings. Under it, hearing on petition for return of assets is not a matter of right, but the court, “if such petition shall be deemed sufficient, may make an order for a hearing thereon.” The hearing, as well as the return of property, is discretionary. It is hardly necessary to suggest that it is not an abuse of discretion to refuse to grant a hearing on such a peti tioxx filed the day before the time set for confirmation of sale of assets and upon which hearing is not moved until after the sale has been confirmed and closed.
Nor was the petition sufficient. It alleged that the stockholders desired to reorganize the corporation by sellixxg for cash class A stock in the amount of $175,000; to give trade creditors class B stock in lieu of their claims; to distribute class C stock to present stockholders; and that trade creditors, to the amount of $75,000, had accepted the plan. The plan contemplated a working capital of over $100,000, and would carry into the reorganization $156,000 of the present debts, consisting of $13,000 current liabilities (evidently trade creditors who had not agreed to take stock for their claims), $21,000 taxes, and $121,000 bank loans. The petition did not allege that any part of the xxew stock had been subscribed, actually or tentatively, even by the petitioning stockholders, nor indicate how or to whom it could be sold. It alleged an expectation, but no promise, that the banks would defer their loans, but did not suggest how release of the present indorsers therefrom was to be obtained. Aside from the trade creditors’ conditional consent to reorganization, the petition alleged nothixxg definitely done toward success of the plan. To a considerable extent the matter was gone ixxto on the hearing on confirmation of sale and the testimony gave no aid to-the petition.
There had been time and opportunity to make a concrete showing. The testimony was that, for a time, some of the petitioners had been working in conjunction with the indorsers on reorganization. That relation had ceased and petitioners knew, about August 18th, that the indorsers’ plan contemplated no participation by or benefit to the old stock. Thereafter they had opportunity to present their own plan to stockholders and others and make at least a showing of progress which would justify a grant of further time, if not of immediate return of assets.
The property may be returned to the corporation, under the statute, only in the exercise of sound judicial discretion. When a corporation is dissolved by order of' the court, creditors may rely upon the estate being liquidated in an orderly manner and their participating in the residue. It would be an abuse" of discretion to permit the stockholders to further hazard the property without consent of the creditors or their immediate insurance against loss, at least to the extent of what they would receive on regular liquidation.
The petition failed to allege such assurance of successful reorganization with security to creditors as would have justified the court in granting it. Consequently, there was no abuse of discretion in denying hearing thereon.
The orders are affirmed, with costs.
Butzel, C. J., and Clark, Potter, Sharpe, and North, JJ., concurred with Fead, J. | [
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McDonald, J.
The plaintiff presented a claim to the department of labor and industry to recover compensation for accidental injuries sustained while in defendant’s employ. Defendant denied liability on the ground that at the time of the accident plaintiff was not an employee but an independent contractor. From an award in favor of the plaintiff the defendant has appealed.
The material facts are not in dispute. On February 20, 1930, the parties entered into a written contract wherein it was agreed that for a period of one year from date the plaintiff would accept any roofing job tendered to him by the defendant within 30 miles of the city hall in the city of Flint, Michigan, that he would perform all jobs in a workmanlike manner and in accordance with specifications contained in estimate sheets furnished by the defendant; that he would employ at his own expense all workmen engaged in and about the work, discharge them at will, and have complete supervision and control over them; that he would make good any defect in workmanship; that he would return to defendant all ladders, scaffolding, and equipment loaned to him for use in the work, and, in case of any damage thereto, allow the defendant to deduct the same from any money due to him; that on all jobs he would save the defendant harmless from demands for compensation, protect defendant against all liens, claims for damages, lawsuits, and claims of every nature arising out of the performance of the work; that defendant would furnish all material used on the job and pay to the plaintiff as compensation so much per square of the actual roofing.
On June 2, 1930, the plaintiff was accidentally injured while working on a roofing job taken by him in accordance with the terms of the contract.
The department of labor and industry was not pleased with this contract. It correctly character ized it as unfair to the plaintiff and as a studied attempt to avoid the provisions of the workmen’s compensation act (2 Comp. Laws 1929, § 8407 et seq.). Nevertheless, the plaintiff had a right to make it and presumably he did so voluntarily. If it was in force and effect at the time of the accident, and the work he was doing was being done under its terms and provisions, he must be held to have been an independent contractor. It gave him the right to control the work and the workmen, to hire and to discharge them at will, and required him to pay them out of his compensation. It provided that he should do the work according to specifications furnished by the defendant, and to make good any defects in workmanship. In short, it was a contract to do a job of roof laying with full control of the work and means - of accomplishing it. In doing this work he was an independent contractor. Perham v. American Roofing Co., 193 Mich. 221; Carleton v. Foundry & Machine Products Co., 199 Mich. 148 (19 A. L. R. 1141).
The department of labor and industry reached a different conclusion, evidently on the theory that the defendant departed from the contract by assuming to hire and discharge workmen and to control the plaintiff in the manner of doing the work. If the contract rested in parol, the defendant’s conduct would be strong evidence of the relationship of employer and employee; but it was in writing and the relationship of the parties must be measured' by its terms and provisions. Moreover, actual interference or actual control is not the test of the relationship. In Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385 (Ann. Cas. 1918C, 664), it was said:
“It is not the fact of actual interference with the-control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.”
By the provisions of the contract, the right to control was in the plaintiff, and the fact that there was actual interference by the defendant with his right did not change the relationship established by the contract.
As the relation of employer and employee did not exist between the parties, the plaintiff was not entitled to compensation. The award is reversed.
Butzel, C. J., and Wiest, Clark, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Butzel, C. J.
George Lacombe, plaintiff, on December 12, 1928, sustained severe injuries to his right hand and arm while in the employ of defendant Birds Eye Veneer Company. An agreement was entered into a short time later providing for workmen’s compensation to plaintiff at the rate of $15 a week. This was approved by the department of labor and industry, and payments were made until October 12, 1929.
About the 1st of October, an adjuster of defendant Lumbermen’s Mutual* Casualty Company, the insurer of the risk, interviewed plaintiff and urged him to attempt light work at the plant of the Veneer company. Plaintiff attempted to work as a sweeper by using only his left hand, but at the end of a short period he was discharged.
About the 1st of November, 1929, while plaintiff was working at the plant, an agent of the defendant offered him a check for $55 and asked him to sign a document. Plaintiff is unable to read or write. He alleges that he signed, however, when it was represented to him that acceptance of the check and his signature would not constitute a release of defendant’s liability for further payments. The document which plaintiff signed is a settlement receipt on the form of the department of labor and industry. The receipt was filed with the department on December 9, 1929, but was never approved by it.
In July, 1930, not having received any further payments, plaintiff filed a petition with the department of labor and industry for further compensation. In it he alleged that it was only after the refusal of further payment that he became aware of the claim of defendants that the paper he had signed released them from further liability. Plaintiff withdrew his petition before a hearing, but nevertheless the deputy commissioner entered an order denying compensation. He stated therein that the petition had been withdrawn.
In the belief that the settlement receipt might be binding on him unless set aside, plaintiff filed his bill in the instant case asking that the receipt be annulled on the ground that it had been obtained from him by fraud. Belying on the case of Richards v. Rogers Boiler & Burner Co., 252 Mich. 52, the trial judge dismissed the bill on defendants’ motion. The bill was properly dismissed.
Without the approval of the department of labor and industry, the settlement receipt has no binding-effect. It does not excuse defendants from continuing- to pay the agreed compensation. The original agreement, which was approved by the department, remains undisturbed until it is changed by a valid order of the department. One of the purposes of the law demanding that a settlement receipt in order to be effective must be approved by the department, is to provide for the very situation which it is claimed exists in the present case. Plaintiff’s petition for further compensation and the order entered by the deputy commissioner are of no force and effect.
Inasmuch as the settlement receipt has never been approved by the department of labor and industry, the original award still stands and plaintiff has an adequate remedy at law without the aid of a court of equity. The decree of the lower court in dismissing the bill is affirmed, without costs to either party.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Fead, J.
The action is against Rich as principal and the other defendants as his sureties. Judgment ran against Rich, but in favor of the sureties, and plaintiff reviews. Trial was had before the court without a jury. No exceptions to the findings were seasonably filed, and the judgment stands if sustained by the findings. Gervickes v. Royal Exchange Assurance Co., 222 Mich. 103.
Plaintiff sells merchandise through salesmen who buy it on credit and solicit business and deliver goods in allotted territory. Eich had contracts with plaintiff continuously since 1924, and had become indebted to it in the sum of $715.30. The contract at bar was dated December 31,1927, and gave Eich the right to purchase and sell until March 1, 1929. The suretyship agreement obligated the sureties to pay the old debt and future charges at the time, place, and manner provided in the contract. The contract provided that payment of the old debt should be from time to time during its term in amounts satisfactory to plaintiff, and that future charges should be paid on expiration or termination of the agreement. The practice was to make periodical or occasional payments.
The contract was 'sent to Eich on December 31st for execution. He returned it signed by some of the sureties. It was sent back to him two or three times for more sureties, and was not finally executed and delivered to plaintiff until on or about May 8, 1928. Goods were purchased at intervals during the next month and some payments made, but not sufficient to equal the charges. The summer was the best business season.
On June 8, 1928, plaintiff, without prior demand for payments on the old or new debt or intimation of dissatisfaction in any respect, notified all the defendants that the contract was terminated and the whole debt due and payable. It claimed the right to prematurely end the contract under the provision:
“And it is further mutually agreed that either of the parties hereto may terminate this agreément at any time by giving the other party notice thereof in writing by mail, and any indebtedness then owing by either party to the other shall thereupon be and become immediately due.and payable.”
The court found that the purpose of the sureties in their undertaking was to aid Rich to obtain, the business for a new full term in which to pay his debts; that they would not have executed it if they had known such opportunity would be arbitrarily refused him; that during the winter Rich had been in poor -health, unable to attend to business, the roads were in bad condition so it was impracticable to travel until May; and that he undertook his campaign for business as soon as the contract had been accepted. The court further found:
“The plaintiff company has never assigned any reason for the termination of the contract, and, so far as the record discloses, none existed. The canceling of the contract by the plaintiff was obviously and as a matter of fact an arbitrary exercise of the will of the plaintiff and was not a reasonable and good-faith exercise of the power conferred by the contract to terminate the same by notice.”
A provision in a contract for termination at the option of a party is valid. But where the relationship is commercial and does not involve fancy, taste, sensibility, judgment, or other personal features, the option may be exercised only in good faith. Cummer v. Butts, 40 Mich. 322 (29 Am. Rep. 530); Brucker v. Railroad Co., 166 Mich. 330; Holton v. Monarch Motor Car Co., 202 Mich. 271; Brown v. Board of Education, 117 Kan. 256 (231 Pac. 72); Bishop v. Bloomington Canning Co., 307 Ill. 179 (138 N. E. 597); 13 C. J. p. 607.
Counsel argued, and this is the only reason suggested by the testimony, that plaintiff canceled the contract because payments were not made on the old debt nor in full on the new charges. It had refused to tell Eich the cause on demand. Even at the trial plaintiff did not assign a reason. Plaintiff’s conduct justifies a serious doubt that it ever intended to extend to Eich the benefit of the contract for its term. The testimony strongly indicated that plaintiff was concerned with securing the execution of a contract to pay the old debt by sufficient sureties, and, having obtained their guaranty, desired to make immediate collection. It amply warrants the finding of the court that plaintiff did not act in good faith.
Plaintiff, having arbitrarily ‘and illegally terminated and breached the contract, the sureties were discharged from liability thereon. Warner v. Fallon Coal Mines Co., 246 Mich. 493.
Judgment affirmed, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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North, J.
Plaintiffs’ bill of complaint was filed for the purpose of securing a decree by which defendants would be enjoined “from proceeding with the erection of the church building and appurtenances thereto upon lots 367, 368 and 369” of Coonley’s subdivision in the city of Detroit, and “from violating in any manner whatsoever the building restrictions pertaining to and adherent to the premises herein described.” As to the plaintiffs other than William L. Grindell and Bernice Grindell, the bill of complaint was dismissed by decree in the lower court; and there has been no appeal from this portion of the decree. Hence we are here concerned only with the case as presented by thé plaintiffs Grindell. As to them the relief sought was decreed; and the defendants, hereinafter referred to in the singular as the Reformed Church, have appealed.
The three lots involved face on Dexter boulevard just' south of its intersection with Joy road. Together they constitute a parcel substantially 100 feet by 120 feet. Coonley’s subdivision is composed of 395 lots, 51 of which are vacant. With the exception of defendant’s property, the buildings on this subdivision have been restricted to residential purposes in conformity with provisions in the deeds conveying the lots. Defendant’s deeds contain like restrictions hereinafter quoted. In 1922 representatives of the defendant contemplated purchasing the lots in question for a church site. They were informed of the building restrictions, and sought releases from certain lot owners. They obtained 17 such releases. These included the adjacent property on both sides of the church site. Such a release was not solicited from the plaintiffs Grindell, who are husband and wife, and owners of lot 332. This lot faces on Clairmont avenue and is 138 feet west of the street intersection next south of the church site. A building permit was obtained October 25, 1922, which is the approximate date on which defendant received deeds to the church lots. The material portion of the building restrictions contained in these deeds is as follows:
“Until January 1, 1944, and no longer * * * no structures shall be built upon any lot in the said Coonley’s subdivision except for dwelling house purposes only, having at least two stories in height and their appurtenant outbuildings, or an approved type of bungalow which must be first approved by the party of the first part. * * *
“On lots fronting on Dexter boulevard, nothing allowed, but single houses to cost not less than $4,000; double houses to cost not less than $5,500; duplex or two flat, to cost not less than $5,000 to be built of solid brick, stone, cement, brick, or stone veneer or stucco, and no such house shall be built nearer than 30 feet of the front lot line.”
The defendant purchased a church building of the fabricated knockdown type, and completed its erection on the site in December, 1922. This building is 25 x 60 feet, one story in height, so located that it occupies the rear portion of each of the three lots and faces on Joy road. Together with the expense of erection and the equipment in connection therewith it cost substantially $6,000. It has been used continuously for church and Sunday school purposes to the present time.
In 1927 and 1928 public announcements were made of defendant’s plan to erect a new and permanent church edifice on its property. This new building, as planned, would face Dexter boulevard. The estimated cost is about $100,000. At least pending construction of the new edifice it is the plan that defendant’s present structure shall remain intact. In September, 1928, notice was served by the Coonley Subdivision Association upon defendant of objection to violation of the building restrictions. About that time the pastor of the church secured the signatures of upwards of 100 property owners in this subdivision waiving objection to the erection of the church building. Defendant began excavating for the new building, and on February 21, 1930, plaintiffs filed the bill of complaint herein.
The following recital in his decree discloses the basis of the circuit judge’s decision:
“The proposed erection of a large church building as aforementioned would be an extension and enlargement of the past and present use of the lots and premises * * * from that use already made of said lots and premises by defendants * * * concerning which past and present use the plaintiffs may not now complain, having by their silence waived their rights so to do.”
The decree as entered vests in the defendant the right to continue the present usé of its property for church purposes and to do such things as may be necessary for the upkeep and maintenance of its present church structure; but any extension thereof or replacements by a more permanent or larger church building is enjoined. In arriving at his conclusion the circuit judge seems to have relied much upon Austin v. Van Horn, 245 Mich. 344; Boston-Edison Protective Ass’n v. Goodlove, 248 Mich. 625, and other like decisions in restriction cases.
Courts of equity in passing upon cases of this character grant or withhold injunctive relief depending upon the accomplishment of an equitable result in the light of all of the circumstances surrounding the particular case. Putnam v. Ernst, 232 Mich. 682. The issue here presented is this: Under the particular circumstances disclosed by this record, should the defendant be enjoined from erecting a new and somewhat larger church building on this property which they have used and occupied for church purposes without complaint since 1922.
It is of prime importance to note that by the decree from which plaintiffs have not appealed defendant has the right to continue its present church activities, which of course includes any additional use of its church property by reason of growth of the congregation, if any. In this connection it must be borne in mind that the restrictions invoked by plaintiffs expire by their own limitations in 1944. Thus the question narrows down to a determination whether, after all, plaintiffs will be materially injured by the erection of the new church edifice now rather than in 1944, the defendant in the meantime having the right to use its somewhat unsightly and so-called temporary structure.
We are not impressed with plaintiffs’ claim that defendant’s building program will constitute an extension of the violation of the building restrictions which has already been countenanced. It is true the new building as planned will be somewhat larger, will occupy a different portion of the lots and will face on Dexter boulevard instead of Joy road. But a church is a church; and it cannot well be asserted that only so much of a church site as is actually occupied by the edifice located thereon is used for church purposes. It is common practice to use the adjacent lot area for parking purposes: It is by no means uncommon for outdoor church gatherings to make use of the whole or any part of the church yard. Defendant clearly has the right so to use its premises. Admittedly there would be a limit beyond which defendant would not be allowed to go as to the character of the building it might erect on this site in lieu of its present church. Its present building conforms to the set-back re quirements; and we assume violation of these provisions is not contemplated by the erection of the new building. The owner of the adjacent property, who will be most affected by the proposed change, has consented thereto. The record contain? the architect’s drawings of the proposed church and concerning it the circuit judge.in his opinion said:
“It is my personal opinion that the erection of the building in question would improve the neighborhood instead of being a detriment to it. The building itself, as indicated in the exhibits, would be a beautiful and sightly structure, and the present structure is quite the reverse. * * * The evidence discloses that there would be no material detriment to any of the parties plaintiffs from the immediate construction of this particular structure.”
To some extent the claim is stressed that, inasmuch as the present church faces on Joy road, defendant should not be permitted to erect a new church edifice facing on Dexter boulevard. This goes to the fact that Dexter boulevard is much more strictly a residential thoroughfare than Joy road. If plaintiffs’ property was situated "on Dexter boulevard some favorable consideration might be given to their contention in this regard; but as noted above their property is some distance west of the next corner south of the church property. We find nothing in this record which furnishes equitable grounds for a decree that defendant’s new edifice may not face on either of these streets. Even as-bearing upon the parking situation, it matters little and perhaps not at all whether the new church faces the one street or the other, because entrance on one street has little or no effect on the matter of parking on the other. While we consider .it.-of no particular importance, it may be noted that as platted defend ant’s lots face Dexter boulevard. We think its rights in this particular are not materially affected by the fact that its present church edifice erected on the rear of its lots faces Joy road. The proposed church building will more nearly conform to the building restrictions than the present structure; and the erection of the former will have no more tendency to abrogate the restrictions in this subdivision than the maintenance of the latter.
Investigation of the decisions of this court will uniformily disclose that injunctive relief has been denied when to grant it would have been inequitable or when those applying therefor have estopped themselves by their conduct or their inaction. In the cases relied upon by the trial court the parties against whom injunctive relief was granted sought by an enlargement or an extension of an existing violation of building restrictions to bring about a more objectionable, more aggravated, or more damaging- condition than already existed. In this particular we think the present case is readily distinguishable. Defendant’s new building, as found by the circuit judge, will not work a hardship or a damage to the parties plaintiffs, or, so far as the record shows, to any other property holder in this subdivision; especially in view of the fact that defendant now has the right to carry on its church activities on its present site. Without complaint from plaintiffs or other property owners in the subdivision, defendant has carried on its activity at this location for the last eight or nine years. In so doing it has acted openly and has in no way secreted or attempted to cover up its obvious intention of permanently using this site for its church work. It has become established in this locality, and presumably could not change its location except at a substan tial financial sacrifice and possibly other disadvantages. The circuit judge was obviously reluctant to grant plaintiffs relief; but felt constrained to do so because of our decision in Boston-Edison Protective Ass’n v. Goodlove, supra, and other cognate cases. In view of the facts presented in the instant case, we think our holding here in no way conflicts with that in the Goodlove case. We there held that to the extent plaintiffs had for a long* time acquiesced in defendant’s violation of the restrictions they were estopped from asking injunctive relief. We hold only that in the instant case. The equities here presented are not such as justify granting to plaintiffs the relief prayed.
The decree of the lower court will be reversed, and one entered here dismissing plaintiffs’ bill of complaint, with costs of both courts.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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Sharpe, J.
The defendant and her brother and sister, as heirs of their mother, were the owners of certain property in Detroit which they desired to dispose of. The brother was trying to find a buyer, as was also the defendant and her attorney, Charles F. Delbridge. The price was agreed upon, In order to stimulate activity in procuring a purchaser, and to avoid dispute as to the person who should do so, a written agreement was entered into between them. It provided that upon the deposit with Mr. Delbridge of an offer in writing from a responsible party to purchase the property at the price agreed upon, accompanied by a certified check for $3,000, payable to the order of the defendant as executrix, the parties would enter into a written contract to sell the same on the terms therein stated.
It was further provided that on receipt of the first offer made, accompanied by such deposit, Mr. Del-bridge should acknowledge its receipt and enter into an agreement on behalf of the parties for the execution of such contract by them and notify each of the parties thereto .of such action. The paragraph following then appears therein:
“That the usual real estate commission of 5 per cent, of the sale price of said property shall be paid by the parties hereto, each a one-third part thereof, to such person or persons as shall procure such purchaser, whether such person or persons procuring such purchaser shall be one of the parties, to be paid out of the first $50,000 paid on said contract.”
It became known to many real estate salesmen that the property was for sale. Mr. Delbridge testified:
“Personally, if I could have found a buyer I would have been tickled to death to get the commission myself, and my recollection is not clear whether it was Mr. Meginnity or Mr. Helbig, or both of them, one of them came and said they had this man, Ben Jacobs, that would buy this property.
“Q. So then they were the first to produce Mr. J acobs ?
“A. There is no question about that.”
Mr. Jacobs’ offer was made in writing on June 16, 1922. It was brought to Mr. Delbridge by the plaintiffs. It fully complied with the requirements of the agreement, and was accompanied by a certified check for $3,000, payable to the defendant as executrix. Mr. Delbridge acknowledged its receipt in writing. He stated therein that it was the first offer made and that it constituted an agreement on the part of the defendant and her brother and sister to enter into a contract for the sale and purchase of the property.
He at once by letter informed the parties to the agreement of the receipt of the offer, and stated that he understood that Mr. Jacobs was financially responsible. In these letters he stated:
“I have explained to Norman Meginnity and August Helhig, the real estate men, who brought in this offer that the transaction carries the usual real estate commission of 5 per cent, on the purchase price thereof which, according to the terms of the agreement, is to be deducted out of the first $50,000 paid. ’ ’
At the same time he wrote the plaintiffs, informing them of the agreement among the heirs relative to the commission (quoting the paragraph), and stating as his understanding that they were entitled to it.
When the Jacobs offer was accepted by Delbridge, the plaintiffs had earned the commission which the heirs had promised to pay to any person who should produce a purchaser who complied with the requirements of their offer. It appears that, by mutual consent of the heirs, Jacobs’ offer and its acceptance were canceled and a similar offer from Howard Coffin was accepted and the sale to him thereafter consummated. The plaintiffs were instrumental in securing Mr. Coffin as a purchaser. Mr. Delbridge testified that he did not consider that they waived their right to a commission on the sale to Jacobs by doing so.
Under the terms of the agreement among the heirs, they constituted Mr. Delbridge as their agent to bind them by a preliminary agreement for the sale of their property. As such agent he acknowledged in writing that the plaintiffs had taken advantage of the offer made by them to pay a commission to the person securing a purchaser of the property and were entitled to such commission. A privity of contract was thereby created between the plaintiffs and the heirs, enforceable by the plaintiffs in this action. Two-thirds of the commission have been paid by the other heirs, and the plaintiffs were entitled to a judgment against the defendant for her one-third thereof.
The judgment is affirmed.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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] |
Wiest, J.
Act No. 352, Pub. Acts 1925, amended by Act No. 92, Pub. Acts 1927 (1 Comp. Laws 1929, § 3884 et seq.), empowered the State highway commissioner to purchase and condemn private property for highway purposes in the name of the State and enjoined purchase by agreement when possible.
The widening of the highway known as M.O. 33-14, between the cities of Lansing and East Lansing, required taking land owned by Frank E. and Bertha L. Church, styled plaintiffs herein, upon which stood the front 17 feet of their large brick dwelling house. Compensation for the house was a subject of discussion, the negotiation finally culminating in a written agreement, executed by the owners and the State highway commissioner, and approved by the State administrative board, whereby the owners were to grant, convey, and duly acknowledge an easement in, over, and upon their land needed for widening of the highway, and the State highway commissioner, in consideration of the easement, agreed to move the house to a new location upon plaintiffs ’ remaining land and to fully restore it and its accessories, agreeable to Warren S. Holmes, an architect who was selected “to be their arbitrator,” to determine whether the house, upon removal, and its accessories were fully restored, and if not, to fix the compensation to be made to plaintiffs. The agreement also provided that the architect have all the powers of an arbitrator under the arbitration statutes of this State and his award might be confirmed “as provided by said statutes.” If 17 feet of the front of the house had been removed, the remainder would have been worthless, except for junk, and had the rule for determining compensation, in case of condemnation, been employed, the commissioner would have had to pay the value of the whole house. City of Detroit v. Loula, 227 Mich. 189. It was evidently believed by the commissioner that the house could be moved at less expense than its value, and this would have proved true had not damage been occasioned to the building in the course of moving.
The job of moving was let to a private company, and, when the architect was called to view the building after the moving, he found it seriously damaged and its accessories not restored, and, upon detailed specifications, awarded the owners $24,250, and filed the award in court. Thereupon the owners, in accordance with the terms of the agreement, petitioned the court to confirm the award and this was done over objections of the State, and the matter is here for review.
The commissioner was under a constitutional prohibition not to take, under the power of eminent domain, without compensation being first made or secured and the legislative mandate to make an effort to agree with the owners upon compensation by way of purchase. Under delegated power to take by purchase, and constitutional mandate to pay just compensation, the commissioner had a right to agree with the owners upon compensation and the method or means of amicably ascertaining the same, and, if this was done in good faith, and the compensation was so. fixed, the commissioner may not repudiate or the State assert immunity. If compensation is not by agreement then the law points out the method and means for ascertainment thereof. In the instance at bar, the' matter never reached the stage calling for adoption of the statutory procedure for determining the compensation. The law regulating the procedure in case • of inability to agree upon the compensation has no applicability to an amicable agreement.
Employment by the commissioner of delegated power to take and all procedure to such end is in behalf of, and not against, the State. There is no merit in the claim that this is in the nature of a suit against the State without leave of the State. This is in no sense a suit against the State, but is a taking of plaintiffs’ property in behalf of the State, and the phase before us is no more than that of according the owners of the property compensation fixed under an agreement for its purchase. Plaintiffs ’ property could not be taken without compensation being first made or secured. An agree ment secured compensation to be made. Such compensation has been awarded, and if the State keeps the property the compensation must be paid.
But, it is said that the compensation is excessive. No fraud is shown. The purchase price has been determined under the method agreed upon and we must let all parties abide the agreement unless it was illegal. The agreement was out of the ordinary, but not illegal. Except for the contract provision to such end, we might have difficulty in finding authority for filing the award in the circuit court and having confirmation thereof, but the contract covers all this, and, while there is no precedent and this situation will probably not again arise, we cannot refuse the aid of the court invoked by the parties. The parties having agreed otherwise, we ought not to remit the plaintiffs to suit upon the award or a bill in equity for specific performance. The parties agreed upon a method for enforcing payment of the purchase price, and the State ought not to be permitted to stand upon the technicality that, if the award be held good, an action should be brought upon the award, and the circuit court had no power, even by agreement of the parties, to confirm the award.
The approval of the agreement by the administrative board, evidenced by the signatures of the governor and secretary of the board, may not have been required, but, if surplusage, furnishes no reason against the validity of the contract.
The order of confirmation is affirmed, with costs.
Butzel, C. J., and Clark, McDonald, Sharpe, North, and Fead, JJ., concurred. Potter, J., did not sit. | [
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North, J.
By the bill of complaint filed herein on August 1, 1929, the plaintiffs asked the abatement of a nuisance alleged to have resulted from defendants’ manner of maintaining and operating a machine shop or factory immediately adjacent to plaintiffs ’ residence. Defendants’ factory is located at 3546 National avenue, Detroit, Michigan, this being at the corner of National avenue and Brainard street. Plaintiffs’ residence is located immediately south of defendants ’ building and distant therefrom only six feet. Defendants purchased their property in 1923. There was then located thereon a one-story building 30 by 60 feet originally designed for use as a church. Defendants immediately after their purchase installed therein several, machines and began manufacturing various metal parts for. automobiles, stampings, mouldings, etc. In 1925 plaintiffs purchased the property where they now reside. . It was then being operated as a rooming house, and plaintiffs have continued that activity. Shortly after plaintiffs purchased, defendants increased the capacity of their plant by adding a second story to their building. Again in 1928 defendants extended their plant by erecting a two-story brick building fronting on Brainard street and adjacent to the rear of the other building. The additions were constructed without complaint from plaintiffs. Before plaintiffs purchased their property Mr. Eastcott made some investigation as to the character of defendants’ business but does not seem to have obtained any very definite information. Defendants ’ plant and the conduct of its business brought forth no objection from plaintiffs until shortly before the filing of the bill of complaint in 1929. The record discloses that defendants added to their machine equipment from time to time and that two of their largest punch presses are located on the south side of their original building. These machines are placed on reinforced concrete foundations extending some distance into the ground for the obvious purpose of minimizing vibration. They have been in their present location since April, 1925, which was prior to the time plaintiffs purchased their property. A third machine of like type was similarly located in defendants’ plant in March, 1928. While these are the largest machines in defendants’ factory, it seems to appear from the record that they are not the largest type of machine of this class. This particular part of defendants’ equipment and its method of operation is of par ticular importance in this case, because in plaintiffs ’ brief it is stated:
“The nuisance consists in the operation of certain heavy punch presses located along the southerly wall, and as to these, and these only relief (by the court’s decree) was obtained.”
Plaintiffs do not urge that they are entitled to have defendants enjoined from operating this manufacturing plant, but rather to have its operation so .regulated that the nuisance of which complaint is made will be abated. It is plaintiffs’ claim that the objectionable condition arising from the running of the plant has gradually increased until it has become a nuisance per accidens. The alleged situation is thus outlined in plaintiffs ’ brief:
“In 1927, the noise and pounding grew worse, though' the vibration was slight; more machinery was installed. During the latter part of 1927, and the early part.of 1928, noise, vibration and smoke increased gradually. The vibration, of which more especial complaint is made, developed in the winter of 1928, and the spring.of 1929. Mr. Eastcott first observed damaging effects, from vibration, in 1928-1929.”
It was after first noticing the alleged damage from vibration that complaint of the existing conditions was made by plaintiffs to defendants. Plaintiffs claim that in the summer of 1929 the trouble became acute. There is some testimony that additional presses were moved into the factory during, the latter year. After hearing testimony somewhat at length and viewing the premises of the respective parties, the trial judge entered a decree for the plaintiffs, and defendants have appealed. It is mainly appellants ’ contention that the decree is over severe and inequitable in what it requires of appellants by way of abating the nuisance and also that it is vague and uncertain in its terms to the extent that it is impossible for them to determine what is required to comply with its conditions. The decree requires appellants to construct:
“A solid, as near as possible, sound-proof wall in the place of the old south wall of the said factory adjacent to plaintiffs’ premises so that all windows and openings are eliminated and so that noise and vibrations caused by the operation of such factory cease. And * * * that the said defendants * * * remove the three heavy punch presses * * * from the south side of defendants’ factory, and that the same be placed upon cork-based concrete, soundproof foundations upon the north side of said defendants’ factory building so that the heavy punch presses will not be adjacent to plaintiffs’ premises, and to eliminate any noise or vibration on the south side of defendants’ factory.”
From a careful review of this record we are of the opinion that less drastic requirements will afford plaintiffs all of the relief they are equitably entitled to receive. In arriving at a fair and equitable disposition of the conflicting claims of these parties, it must be borne in mind that plaintiffs purchased their property after this factory was established in its present location. While there are no other manufacturing activities of the same or of a similar type in the immediate vicinity, there are other commercial activities. The locality is not only unrestricted, but its development is far from being strictly residential. The situation is one in which plaintiffs are not entitled to a decree which will afford them that high degree of protection they might receive in a strictly residential district. On the other hand, it clearly appears that in the manner of operating their plant the defendants have invaded plaintiffs’ rights and they are entitled to relief.
We are impressed with the fact that no seriously objectionable results seem to have come from the operation of the two punch presses which have been ' located where they now are on the southerly side of defendants ’ premises since 1925; and also with the fact that if these presses were moved in accordance with the trial court’s decree they would still be in the same portion of defendants’ building and not more than 20 or 25 feet from their present location. It hardly seems that material benefits would result from so slight a change. Nor do we think that the installation of a third punch press of a like character on the southerly side of defendants’ factory should necessarily materially aggravate the condition of which plaintiffs complain, especially if these machines are properly operated. It clearly appears from the record that plaintiffs’ grievance is materially increased during the summer months when defendants’ factory is operated with one or more of the five windows facing plaintiffs’ house open and when the ventilating fan located on this side of defendants ’ building is in operation. There is some complaint that the southerly wall of defendants’ building, which is constructed of twelve-inch cement blocks, plastered on the inside, is defective, and that this results in unnecessary damage to plaintiffs. We think the objectionable conditions will be largely overcome if defendants are required to install double windows in the original factory building adjacent to plaintiffs’ property, and to keep such windows closed at all times and to remove the ventilating fan in this walk That further, the defend ants should he required to repair any defects in the south wall of their building in the way of cracks or otherwise which aggravate the condition of which plaintiffs complain; and to use reasonable care in the manner of operating the three punch presses above particularly referred to with the view to minimizing the resultant vibration; and that they otherwise use all reasonable care in the operation of their factory to avoid unnecessary interference with plaintiffs’ full enjoyment of their property either because of unnecessary noise, vibration, dust, or odors from defendants’ factory. The defendants should not be required to subject themselves to the expense of relocating their machines or of building a new south wall nor to the disadvantage of entirely shutting off the light from this side of their building until it has been more conclusively established that a reasonable protection of plaintiffs’ rights requires one or more of such changes.
The decree of the lower court will be modified, and a decree in accordance with this opinion entered in this court; but the modified decree will also provide that if the provisions therein are inadequate to afford plaintiffs the relief to which they are equitably entitled, such decree upon application to the circuit court, in chancery, and upon proper showing, may be modified in accordance with what may then appear to be the equities in the case. No costs will be awarded in this court.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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Fead, J.
Plaintiff sought mandamus to compel the clerk of the city of Detroit to place his name on the primary ballot as a candidate for justice of the peace. The clerk refused his application on the ground that, by Act No. 260, Pub. Acts 1929 (3 Comp. Laws 1929, § 16369 et seq.), the office of justice of the peace for the city of Detroit had been abolished. Plaintiff contends that Act No. 260 is unconstitutional.
The justices’ courts in Detroit operated under Act No. 475, Local Acts 1903, and the charter of the city, adopted in pursuance of general law. There were six justices, functioning independently of each other, each responsible for all matters in relation to suits commenced before him. The testimony, shows that, because of growth of population of the city, increase in litigation, lack of co-ordination among the justices necessarily arising out of the independence of their functions, together with some want of cooperation among them, such delay,'inconvenience, expense, and injustice resulted to litigants, counsel, and witnesses that a remedy became advisable, if not imperative. Undoubtedly, the condition could have been ameliorated by voluntary action of the justices, but it was not. Probably some of the evils were inherent in the system and could not have been cured even by personal co-operation. Act No. 260 was adopted in an attempt to better the situation. Its purpose and purport are shown by its title:
“An act to consolidate into one court the courts of justices of the pea,ce in any city having or which may hereafter have, over two hundred and fifty thousand inhabitants; to prescribe the title and define the jurisdiction of and practice in such consolidated court; to fix the number, the time and mode of election and compensation, and to define the powers and duties of the judges thereof; to provide for the designation of a presiding judge of such court and to prescribe his powers and duties; to authorize such court to make and enforce rules governing the practice and procedure therein; to provide for a clerk of such court and to prescribe his compensation, powers and duties; to provide for a review of judgments rendered by such court and the taking and filing of transcripts of such judgments ; to provide for the service of process issued from such courts; and to repeal all acts or parts of acts inconsistent herewith.”
At present, Detroit is the only city in the State having the prescribed population.
When it becomes operative in a city, Act No. 260 consolidates the existing independent justices’ courts into one tribunal, names it the common pleas court, changes the names of the judicial officers to judges, co-ordinates the work under the direction of a presiding judge, and establishes the practice and procedure in certain respects. It does not legislate the justices of the peace out of office, but they continue as judges of the common pleas court to the end of their terms; and, except as otherwise specially provided in the act, the qualifications, terms of office, time and manner of election, compensation, jurisdiction, powers and duties of the judges, and the practice and procedure of the court, are made determinable by the laws, general and local, governing justices of the peace and their courts in such cities. Substantially, the departures from such laws are pertinent to the organization and operation of a unified court. The keynote of the act, as expressed in the title and maintained in the body, is consolidation of existing courts. Under the authorities, it must be held that the act continues the justices’ courts under another name and form and does not create a new court. See Attorney General, ex rel. Hooper, v. Loomis, 141 Mich. 547; People, ex rel. Smith, v. City of Aurora, 78 Ill. 218; State, ex. rel. Stanton, v. Powell, 109 Ohio St. 383 (142 N. E. 401); Worthington v. London Guarantee & Accident Co., 164 N. Y. 81 (58 N. E. 102); Johnson v. State, 59 N. J. Law, 535 (37 Atl. 949, 39 Atl. 646; 38 L. R. A. 373). In the latter case it was said:
‘ ‘ A court consists in its jurisdiction and functions, and not its title or name. ’ ’
May the legislature abolish the office of justice of the peace eo nomine and create such a consolidated court as is here provided?
We are not concerned with the cases relied on by plaintiff, holding that a justice of the peace is a constitutional officer who cannot be legislated out of office, as Act No. 260 makes no such attempt.
By mandatory language, the Constitution requires the establishment of a Supreme Court, circuit courts, probate courts, and justices of the peace in organized townships. These commands emphasize the permissive character of Constitution, art. 7, § 15:
“The legislature may provide by law for justices in cities.”
Under the Constitution of 1850, article 6, § 17, the provision read:
“The legislature may increase the number of justices in cities.”
Because of this language, and the fact that the legislature could not establish other courts than those named in the Constitution, except municipal courts, it may have been necessary, under the Constitution of 1850, to establish justices’ courts in cities in order to complete the exercise of the judicial power of the State. Allor v. Wayne County Auditors, 43 Mich. 76, 100. But the necessity no longer exists, as the present Constitution, article 7, § 1, authorizes the legislature to establish, by general law, “other courts of civil and criminal jurisdiction, inferior to the Supreme Court.’’ This, with the changó' in wording in. the provision for justices in cities, clearly permits the legislature to provide for courts in cities by means of justices of the peace or otherwise, at its discretion.
The Constitution, article- 7, § 16, provides:
“Sec. 16. In civil cases, justices of the peace shall have exclusive jurisdiction to -the amount of one hundred dollars, * * * with such exceptions and restrictions as' may be provided by law.”
In contending that this section prohibits the, legislature from taking such exclusive jurisdiction from justices and vesting it in other courts, counsel does not give force to the exception. The legislature, from early days, has evidenced its understanding that the exception is effective by enacting laws circumscribing the jurisdiction of justices and conferring on other courts original jurisdiction in cases involving less than $100. The power has been sustained by this court. Milroy v. Mining Co., 43 Mich. 231; Detroit Lbr. Co. v. Auxiliary Yacht “Petrel,” 153 Mich. 528.
The Constitution does not prohibit the legislature from establishing new'Courts in cities and vesting in them the jurisdiction of justices of the peace. Much less does it restrain the legislature from continuing jurisdiction in the same court under another name and form.
It is contended that Act No. 260 is merely amendatory of local acts governing justices’ courts in the city of Detroit; therefore, is itself local (Attorney General, ex rel. Cotter, v. Lindsay, 221 Mich. 533); and is invalid without a referendum (Constitution, article 5, § 30).
The Lindsay Case involved Act No. 364, Pub. Acts 1921, amending- Act No. 369, Pub. Acts 1919, which was “An act to supplement existing laws providing for the establishment and maintenance of municipal courts of record,” etc. The “existing laws” were local acts. Act No. 369 was tied to them in an amendatory character by the word “supplement.” Moreover, it contained an express referendum clause. Construed as merely amendatory of local acts, it was held local.
The act at bar is independent and general in form, not amendatory or supplementary in language, and operates alike on existing and future courts established under general or local law. Of course, it has an amendatory effect upon local acts, and may upon general law, in the respect that, because of inconsistency, it may modify or repeal their provisions. But this does not stamp it as amendatory in a constitutional sense. People, ex rel. Drake, v. Mahaney, 13 Mich. 481; People v. Stimer, 248 Mich. 272 (67 A. L. R. 552). If it did, the legislature would be without power to give full effect to general law governing matters already covered by local laws without a favorable referendum in all districts having such local laws. The Lindsay Case cannot be given such effect; nor does the Constitution so restrain the legislature.
If Act No. 260 applied only to the city of Detroit, it would not be difficult to consider it as purely amendatory of a local act. However, as it is general in application, it is to be visualized as leaving local laws untouched until certain conditions occur, upon which it supersedes them in some respects. Talcing the courts as established under local acts, it superimposes a new organization, by consolidation, through law applicable alike to all cities which come within its terms. If it is otherwise a general law, Act No. 260 cannot be considered local as amendatory in character of local acts.
Plaintiff also urges that Act No. 260 is a local act because the standard of population adopted by it renders it applicable only to the city of Detroit.
The act is unlike that under consideration in Mulloy v. Wayne County Bd. of Supervisors, 246 Mich. 632, in that it has an open end through which cities are automatically brought within its operation when they attain the required population.
It differs from the act treated in Attorney General, ex rel. Dingeman, v. Lacy, 180 Mich. 329, where there was no showing of necessity or advisability, and in which it was held that population had no such reasonable relation to the object of the law as to justify classification upon it, because the city of Detroit presented no problems of domestic relations, except frequency, different from other communities. Here, population is of the essence of the condition sought to be corrected. Growth of population causes increase of litigation and requires more judges to handle it. When the litigation becomes burdensome, its proper disposal requires co-operation among the judges. A few will agree together better than many. And, as was shown by the testimony, the mass of litigation may become so great that even voluntary co-operation would not solve the problem. It is not for the court to say whether the conditions render a remedy imperative nor what the remedy should be. These are legislative questions. It appearing that there is a reasonable relation between population and the object of the law, the act, general in form, must be held general within the Constitution. People v. Brazee, 183 Mich. 259 (L. R. A. 1916 E, 1146); Burton v. Koch, 184 Mich. 250; Hayes v. Auditor General, 184 Mich. 39; Grinnell Bros. v. Moy, 230 Mich. 26; Dunne v. Railway Co., 131 Mo. 1 (32 S. W. 641); State v. Ames, 91 Minn. 365 (98 N. W. 190); In re Church, 92 N. Y. 1; Bingham v. Bd. of Supervisors of Milwaukee County, 127 Wis. 344 (106 N. W. 1071); Cooper v. Rollins, 152 Ga. 588 (110 S. E. 726, 20 A. L. R. 1105); Mortland v. State, ex rel. Christian, 52 N. J. Law, 521 (20 Atl. 673); 12 C. J. p. 1134.
It is urged that Act No. 260 deprives the city of Detroit of the right to regulate its minor courts and violates the home-rule principle of the State. We are cited to no constitutional provision which suggests such principle as a restriction on the power of the legislature to establish or .consolidate courts having jurisdiction over other than inhabitants of the city. Such courts are not solely of municipal concern but are instrumentalities for' exercise of sovereign power and of such interest to the whole State that, in the absence of express constitutional limitation, the legislative power cannot be subordinated to local considerations or authority.
Act No. 260 is valid, and the judgment of the circuit court denying mandamus is affirmed.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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] |
Fead, J.
This is certiorari to the corporation tax appeal board to review affirmance of a levy of corporation privilege tax by the secretary of State.
The Detroit Properties Corporation was incorporated under the laws of this State to buy and hold real estate, stocks, bonds, or other securities and to deal in the same. A bill of complaint was filed against it by a creditor, alleging, in substance, that the corporation was solvent but confronted with immediate financial embarrassment and praying, among other things, for the appointment of a receiver, with authority to continue the business of the defendant and “to protect and preserve its franchise and privileges.” The court appointed Union Guardian Trust Company temporary receiver with the usual powers and also authority—
“in general to operate the business of the defendant as fully as the defendant operated same and in the manner best calculated in the opinion of the receiver to fully protect that business, to the end that the business of the defendant may be preserved as well as its assets.”
The issue is whether the corporation is subject to the privilege fee which, by 2 Comp. Laws 1929, § 10140, every domestic corporation is required to pay “for the privilege of exercising its franchise and of transacting its business within this State,” and which accrued after the appointment of the receiver and its taking control of the corporate property and business. The question is one of first impression with this court.
The privilege fee is an excise tax, not upon the right to be a corporation, but upon the activities of the corporation in the exercise of its corporate franchise, or, as it is sometimes expressed, upon the franchise “to do,” not upon the franchise “to be.” Union Steam Pump Sales Co. v. Secretary of State, 216 Mich. 261, 272; In re Detroit & Windsor Ferry Co., 232 Mich. 574; In re Truscon Steel Co., 246 Mich. 174; Cobbs & Mitchell v. Corporation Tax Appeal Board, 252 Mich. 478, 481. Actual transaction of business'by a domestic corporation is not a condition of the tax. It is imposed on the right to transact. In re G. H. Hammond Co., 246 Mich. 179; 2 Comp. Laws 1929, § 10140.
In all the cases cited or found, where- the power to impose a similar tax during receivership has been denied, it has appeared that the corporation was insolvent, or in process of liquidation, or had been prohibited by law or injunction from exercising its franchises, or the proceedings were for dissolution, the receiver was not operating the business, and the life or right of the corporation to do business had ceased. Jones v. Winthrop Savings Bank, 66 Me. 242; Johnson v. Johnson Brothers, 108 Me. 272, 296 (80 Atl. 741, 750, Ann. Cas. 1913 A, 1303); State v. Bradford Savings Bank, 71 Vt. 234 (44 Atl. 349); Commonwealth v. Lancaster Savings Bank, 123 Mass. 493; Greenfield Savings Bank v. Commonwealth, 211 Mass. 207 (97 N. E. 927); Keeney v. Dominion Coal Co., (D. C. [Ohio]), 225 Fed. 625; State of Ohio v. Harris (C. C. A.), 229 Fed. 892.
In holding a receiver liable for a tax “for the privilege of operation of the street railway in public ways” in Collector of Taxes v. Railway, 234 Mass. 336, 342 (125 N. E. 614), the court used language applicable to all the above cases:
“There are numerous cases which have held that a corporation in the hands of a receiver is not subject to a franchise tax. Those are cases, however, where the corporation has been prohibited by law or by injunction from exercising its franchises and the receiver is not using them, or the corporation is in process of liquidation.”
The cases in which the power to tax has been upheld are many, but some of them have aspects which cause them to be more or less distinguishable from that at bar.
In some States the tax is on the franchise of the corporation “to be” and seems to be collectible until legal dissolution or its equivalent. Kirkpatrick v. Board of Assessors, 57 N. J. Law, 53 (29 Atl. 442); In re United States Car Co., 60 N. J. Eq. 514 (43 Atl. 673); Duryea v. American Woodworking Machine Co. (D. C. [N. J.]), 133 Fed. 329; Conklin v. United States Shipbuilding Co. (D. C. [N. J.]), 148 Fed. 129; In re Malko Milling & Lighting Co. (D. C. [Md.]), 32 Fed. (2d) 825; State v. Bradley, 207 Ala. 677 (93 South. 595, 26 A. L. R. 421).
In some other States statutes provide for the collection of such taxes from a receiver. The courts, however, have not laid decision upon the ground that such special provision created the liability of the receiver for franchise taxes, but have founded liability upon general principles as well. Bright v. State of Arkansas (C. C. A.), 249 Fed. 950; Armstrong v. Emmerson, 300 Ill. 54 (132 N. E. 768, 18 A. L. R. 693). In Ohio, where such a statute exists, it has been held, in conformity with the rule elsewhere, that an insolvent corporation which could not exercise its franchise is not subject to the tax when under receivership. Keeney v. Dominion Coal Co., supra; State of Ohio v. Harris, supra. But where the receiver continued the business of the corporation, the tax was sustained. Morley v. Cleveland Hippodrome Co., 23 Ohio C. C. (N. S.) 295; Gerke Brewing Co. v. Kuerse, 7 Ohio App. 37; Guardian Savings & Trust Co. v. Templar Motors Co., 116 Ohio St. 95 (155 N. E. 691).
The New York statute, Cahill’s Consol. Laws of New York, 1930, Chap. 61, § 209, usually reported in the cases as “Consol. Laws, C. 60,” provides a tax on corporations generally, “for the privilege of exercising its franchise in this State in a corporate or organized capacity;” and for railroad companies in substantially the same language (Chap. 61, § 184). See People v. State Tax Comm., 189 App. Div. 347 (178 N. Y. Supp. 486). It is held that the tax may be levied during a receivership when the receiver is authorized to carry on the business of the corporation. Central Trust Co. v. Railroad Co., 110 N. Y. 250 (18 N. E. 92, 1 L. R. A. 260); People v. State Tax Comm., supra; New York Terminal Co. v. Gaus, 204 N. Y. 512 (98 N. E. 11); People v. Hopkins (C. C. A.), 18 Fed. (2d) 731; Providence Engineering Corp. v. Downey Shipbuilding Corp. (D. C. [N. Y.]), 8 Fed. (2d) 305. See, also, New York Trust Co. v. Island Oil S Transportation Co. (D. C. [N. Y.]), 7 Fed. (2d) 416; Philadelphia & R. R. Co. v. Commonwealth, 104 Pa. 80.
To complete the review of authorities, we are informed by counsel that the Federal district court of the western district of Michigan and the standing master in chancery of the eastern district, in unreported cases, have sustained the Michigan tax under conditions similar to those at bar.
It appears, then, that the courts are unanimous in holding a réceiver liable for the franchise or privilege tax where he operates the business of the corporation. May the rule be sustained in principle?
Plaintiffs seek to draw a distinction between public utility corporations with special and public functions and private corporations, but we do not find that the courts have done so, except in Mather’s Sons’ Co.’s Case, 52 N. J. Eq. 607 (30 Atl. 321), where it was pointed out that the receiver of a public utility corporation must pay the tax because it is his duty to preserve the franchise, while .the receiver of a private corporation pays only as long as he uses the franchise, and, when the corporation is adjudged insolvent, the obligation ceases; and in master’s report in Providence Engineering Corp. v. Downey Shipbuilding Corp., supra, p. 308, where the distinction was denied. A private corporation obtains, its powers from the State, as does a public utility, and if the receiver uses the franchise of the corporation when he carries on the business, there is no basis for the distinction claimed.
Plaintiffs also stress United States v. Whitridge, 231 U. S. 144 (34 Sup. Ct. 24), in which the court held that the Federal corporation tax is not assessable while the corporation is under receivership. The decision has been cited in many of the cases upon the instant question and variously distinguished. We have not discovered that it has been held authority by any court for denial of the right to levy a franchise tax on a corporation under receivership, although there is dictum to that effect. In re Continental Candy Co. (D. C. [N. Y.]), 291 Fed. 773; Bright v. State of Arkansas, supra. In the latter case it was held not controlling of the .instant question, as against the weight of authority and uniformity of decision. Fundamentally, in United States v. Whitridge, the court held that the Federal tax was not upon the corporate franchise or right to do business, but upon the act of doing business by the corporation itself. The opinion demonstrates that the ruling was a special construction of a special law with a special background and purpose and was not founded upon, and did not establish, general principles applicable to other laws.
The cases holding that a trustee in bankruptcy is not liable for the tax are not pertinent. They point out that, unlike a receiver, the trustee takes the ■whole title to the corporate property, and, in operating- the business, he does so as' an individual, and does not exercise the corporate franchises. In re Continental Candy Co., supra; In re Century Silk Mills (D. C. [N. Y.]), 12 Fed. (2d) 292.
On receivership, the corporation is not divested of its franchises, nor do they, lapse.' The court merely takes them into its custody for a time. The franchise “to do” passes to control of the court. Detroit, etc., R. Co. v. Campbell, 140 Mich. 384; Grand Rapids Trust Co. v. Carpenter, 229 Mich. 491; United States v. Whitridge, supra.
The receiver is the creature or officer of the court and is not an agent of the corporation. Face v. Hall, 183 Mich. 22. But when he is authorized to carry on the business of the corporation, his authority does not come wholly or solely from the equity powers or jurisdiction of the court. The grant of corporate powers is a legislative function. The court, out of its own powers, cannot confer them upon an individual. It could not authorize the receiver to conduct a business not within the corporate charter. The power of the court to authorize the receiver to continue the business of the corporation exists only because the court has become the custodian of the corporate franchises. In so authorizing, it merely directs the person who shall exercise powers belonging to the corporation by legislative grant.
“The receiver of a corporation, conducting its business, takes the place of the corporation and its officers for the purpose of performing the necessary corporate duties and functions, and has the same powers for such purposes, while on the other hand, he cannot act in excess of the corporate powers and the court cannot invest him with authority to that extent.” 14-A C. J. p. 1005.
So it follows that, in conducting the business under order of court, the receiver is exercising the franchise “to do” of the corporation. Substantially all the above authorities sustaining the tax so hold. See, also, State v. Sessions, 95 Kan. 272, 278 (147 Pac. 789).
The tax is on the franchise, and, as the franchise is being exercised by the receiver, the tax is valid. This ruling is confined to the case before us and without prejudice to the contentions of counsel as to liability under other circumstances.
The determination of the board is affirmed.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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North, J.
James Dunbar procured a license for the calendar year 1924 and gave a bond under which he operated a taxicab in the city of Detroit. He continued to operate his cab during 1925, but did not secure a 1925 license until March 6th of that year. On January 6,1925, Amanda Watson, plaintiff herein, was struck and seriously injured by Dunbar’s cab. The accident was due to the carelessness and recklessness of the driver. Mrs. Watson sued Dunbar and recovered a judgment on which there is unpaid an amount in excess of the bond. In this suit against the surety on the bond, tried before the court without a jury, Mrs. Watson had judgment for the amount of the bond, $1,000. Defendant reviews by writ of error and states in its brief:
“There is but one question involved in this case, and that is whether any liability arises under the bond filed March 29,1924, by reason of the operation of such taxicab on January 6, 1925, six days subsequent to the expiration of the license for which the bond was filed. * * * Was the bond in force and effect and did the surety’s liability continue as to acts occurring subsequent to the expiration of the license December 31, 1924 ? ’ ’
The Detroit ordinance provides that no person, firm, or corporation shall operate a taxicab without first obtaining* a license therefor from the mayor. The applicant for the license is required to execute a bond to the city of Detroit in the sum of $1,000 for each taxicab, the bond to be executed by one or more “adequate sureties * * * satisfactory to the commissioner of police.” The ordinance provides the condition of the bond shall be:
“That such taxicab or motor vehicle for hire will be operated in accordance with the provisions of the laws of the State of Michigan and the charter and ordinances of the city of Detroit, * * * and that any judgment rendered in any court against such applicant arising out of damage or injury to any person or property caused by the negligent operation of such taxicab will be paid. Any person, firm or corporation who is damnified by reason of such taxicab or motor vehicle for hire being operated in violation of the provisions of such bond niay, in the name of the people of the city of Detroit, institute an action upon the same to recover damages sustained by him.”
Defendant’s bond is conditioned in accordance with the above-noted provision of the ordinance. Unquestionably Dunbar’s license expired December 31, 1924; and, as above noted, it is defendant’s contention that its liability as surety on Dunbar’s bond expired simultaneously with the license. As bearing upon defendant’s contention, it should be observed that the ordinance does not by express terms so limit the bond, nor will such a limitation be found' in the bond itself. In fact, the express condition of • the bond is directly to the contrary, for it provides that if the principal on the bond operates' his cab in violation of the ordinance (which he was doing by operating without a license at the- time of the accident) the surety will be liable in case of injury resulting from such operation. Further, the bond expressly provides that it shall remain in full force and effect unless “any judgment rendered in any court against the owner of such taxicab arising out of damage or injury to any person or property caused by the negligent operation of such taxicab is paid.” It is fair to infer from the record that this corporation acting as a surety on this bond was so acting for hire. Bonds of sureties for hire are more strictly construed against them than are bonds against gratuitous sureties. Rose v. Ramm, ante, 259; Grinnell Realty Co. v. Surety Co., 253 Mich. 16. If such surety intended its liability should be confined to the license period rather than to be held responsible for the damage “to any person or property caused by the negligent operation of such taxicab” (as is expressly stated in the bond) it surely should have so provided in its obligation. This could easily have been done in clear and concise language. Defendant adopted its own wording in the bond and is bound thereby. Grinnell Realty Co. v. Surety Co., supra. The defendant’s obligation as a surety for hire is in the nature of insurance; “and courts in the construction of its contracts usually invoke rules applicable to insurance.” Sandusky Grain Co. v. Borden’s Condensed Milk Co., 214 Mich. 306.
Further, it may well be doubted whether the municipal authorities would have accepted a bond wherein the liability was expressly limited to the exact term of the license, especially in view of the fact appearing from this record that city officials countenanced the operation of these cabs for some reasonable time after the expiration of the license for a given calendar year before requiring the taxi owner to take out a license for the subsequent year. Dunbar’s 1924 license was not issued to bim until January 11, 1924; and Ms 1925 license was not taken out until March 6, 1925. To hold that the surety’s liability is limited to the license period is to hold that sureties on bonds given by taxi owners who are thus operating in express violation of the ordinance are exempt from liability; and that the public is without the protection contemplated by the ordinance.
“There* is no question as to the general rule that the language of the bond should receive that construction most reasonable to effectuate the intention of the parties, in view of all the circumstances of the case and the purpose and object of the bond.” Stratford Arms Hotel Co. v. General Casualty, etc., Co., 249 Mich. 518.
TMs bond was obviously required for the protection of the public. If its purpose had been to protect rights of the municipality issuing the license, there would be force and logic in limiting the life of the bond to the license period. Of such a type is the case of Adams v. State, 105 Tex. 374 (150 S. W. 591), cited by defendant. But when, as here, the bond is given to afford protection to the general public, if its terms permit, it should be so construed as to accomplish that purpose. Protection against the unlawful operation of licensed taxicabs is* no more needed by the public than protection against the unlawful operation of unlicensed cabs; and this bond as drawn is broad enough to cover such cases. If the limitation contended for by defendant is even to be inferred at all, it is only from the ordinance. But the bond refers to the ordinance only by a single casual reference in its recital portion. It does not even make the provisions of the ordinance a part of the bond by express reference thereto.
At the time of the accident and injury to plaintiff, Dunbar’s taxi was being operated in violation of both the ordinance and the statute. Except for such violation plaintiff would not have been damaged. It hardly seems' logical to hold that because the taxicab was so operated and also operated in violation of the express conditions of the bond, the surety is discharged from liability. We think this bond cannot be so construed. If the surety proposed to thus limit its liability, it should have expressly so provided in the bond. Not only is there no such limitation, but the express provisions of the bond are inconsistent therewith. A similar case passed upon in a Federal circuit court is reported in United States v. Truesdell, 2 Bond’s Rep. 78 (Fed. Case No. 16,543). The syllabus reads:
“The liability of the sureties on the bond of. a manufacturer of tobacco, given in pursuance of section 12 of the act of Congress of March 3,1863, does not cease upon the expiration of his license as such manufacturer. ’ ’
The following is from the body of the opinion:
‘ ‘ The undertaking of the sureties is, not that they are bound for the acts of the manufacturer for any specified time, or until the expiration of his license, but generally, that they will be responsible for him while he manufactures and sells tobacco subject to tax or duty, at the place designated. * * * While it is expressly the duty of the manufacturer to renew his license, and failing to do so, if he continues his business, he subjects himself to a severe penalty, I know of no principle by which it can be held that his failure to comply with the law can inure to the benefit of his sureties.”
The record in the instant case justifies the following from the trial judge’s opinion:
“Neither was said defendant’s bond conditioned that it would terminate with the defendant’s city license to operate his taxicab. Its conditions were that defendant would operate his taxicab in a lawful manner and if he failed and damage resulted therefrom defendant company undertook to respond in damages in the amount of one thousand dollars.
“In short, the function of the bond was to secure the public against unlawful operation of said taxicab, without limiting itself to any particular law or ordinance nor time when it should cease to be effective. * '* *
“On January 6, 1925, plaintiff did sustain damages considerably exceeding one thousand dollars, as a result of the breach of the conditions of said bond, and is entitled to recover thereon the sum of one thousand dollars with costs to be taxed.”
The judgment of the lower court is affirmed, with costs to the appellee.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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] |
North, J.
The defendant reviews by writ of error a judgment entered against it for $959.44. The pertinent facts appear from the following portion of the circuit judge’s findings:
“On January 30, 1926, J. and A. Schweizer executed to Davidow & Davidow their promissory note in the amount of $900 in payment of legal services. This note was indorsed by Davidow & Davidow and came into the possession of the Bank of Detroit. April 1, 1926, it was paid by the receipt of $50 in cash on principal and the accrued interest and by the giving of a new note for $858. June 2d, this renewal note was paid by the payment in cash of $50 on principal and of the accrued interest and the giving of a further renewal note in the sum of $800, signed by J. T. Schweizer and Anna Schweizer and indorsed by plaintiffs. This note was not paid at its maturity on August 2d.
“Davidow & Davidow is a partnership engaged in the practice of law in the city of Detroit. The partnership maintained a commercial account on the Bank of Detroit covered by pass book, Exhibit 7, from August 16, 1922, to August 28, 1926. * * *
“On the 2d of August notice of dishonor was executed and mailed to J. T. Schweizer and Anna Schweizer. * * * Notice that the note had been dishonored was not received by the plaintiffs in this case until the 9th day of August, 1926, at which time they received notice that the amount of the note together with interest and charges, in all $809.69, had been charged back by the bank to their commercial or checking account.
“The Bank of Detroit carried upon its books two accounts with Davidow & Davidow. One account is the ledger account carried in connection with their commercial or checking account. * * * The bank also opened an account with Davidow & Davidow in connection with the note transactions above described. This account is in evidence as Exhibit 9. It is on a sheet under the heading of liability ledger, ‘Indirect as indorser and guarantor.’ It contains a statement of each transaction and named J. and A. Schweizer as makers of the note in question and Steve Davidow as accommodation indorser or guarantor.
“On the first page of the deposit book, Exhibit 7, there is a printed notice containing the following language in so far as it is material in this case:
‘ ‘ ‘ This bank in receiving checks, drafts and notes or other items on deposit or for collection acts as your agent only, and assumes no responsibility beyond the exercise of due care in selecting agents at other points and forwarding such items to them.
“ ‘Should any such check, draft or other item be dishonored or should there be any delinquency on the part of the collecting agent, the amount will be charged back to the depositor’s account and the check, draft, note or other item delivered to the depositor. ’ <
“There is no evidence in the cáse other than the fact that this deposit book had been in use for a period of upwards of four years that the plaintiffs or any of them knew of the existence of this rule. ’ ’
"We also quote the following portion of the trial judge’s findings of law:
“The notice printed in the pass book, Exhibit 7, under the testimony in the case, constitutes a con tract between the depositors and the bank which contract is binding in connection with the commercial account in accordance with its terms.
“This contract does not cover the transaction in question for the following reasons:
“(1) The transaction between the plaintiffs and the defendant bank in connection with the note, Exhibit 1, was neither a receipt thereof for deposit or for collection.
“(2) Such transaction was a discount by plaintiffs with the bank of said note. The deposit as shown in the pass book, Exhibit 7, was a deposit of the proceeds of such discount and not a deposit of the face of said note. * * *
‘ ‘ The note was discounted and a separate account was started as the result of that discount. What was deposited in the checking account was the proceeds of that discount. If the plaintiffs in this case had chosen to take the cash instead of a credit resulting from the discount certainly the bank could not maintain that any relationship existed except the relationship of indorsers and indorsee. The bank could not then recover unless the provisions of the negotiable instruments law were carried out (2 Comp. Laws 1929, § 9338). It is not quite clear how the accidental fact that the proceeds instead of being received in cash were transferred in the shape of credit to their checking account can make any difference in the relationship created by the signing of their names on the back of the paper, Exhibit 1, and their transfer of that paper to the bank.”
The issues hereinafter considered are raised by exceptions to the trial judge’s findings of fact and law and assignments of error thereon. From the above-quoted portion of the record it is obvious that the trial judge in part based his determination of defendant’s liability upon the fact that defendant carried a record of the Schweizer notes in its dis count ledger. In this connection the undisputed testimony shows that this was merely a matter of bookkeeping for the convenience of the bank.
“Q. Then a distinction is made by the bank between the checking accounts and the indirect indorser and guarantor?
“A. As far as bookkeeping is concerned, yes.”
As between the parties concerned in the original transaction, we think a mere form of bookkeeping is not of sufficient consequence to alter a definité contractual relation between the parties, if such is found to exist. The trial judge correctly determined that the printed notice in the pass book constituted a contract between the plaintiffs and the bank which was binding in connection with the plaintiffs’ commercial account. We are mindful that one of the three members of plaintiffs ’ firm testified:
“That this language (of the notice printed in the pass book) was not called to our attention at any time, and the first intimation we had of it was when it was raised by the pleadings in the case.”
At least one of the other two members of this firm was in court at the trial of this case; but neither of them testified as to their knowledge or lack of knowledge of the pass book notice. But obviously determination of defendant’s liability is not controlled by this phase of the case if, as plaintiffs claim, the note in question was discounted by the bank rather than being received as a conditional item of credit in plaintiffs’ account. As noted above, the trial judge held as a matter of law that this note was discounted; but in this conclusion we are constrained to hold there was error. When the two preceding Schweizer notes fell due plaintiffs went with, the makers to the bank without notice or demand, so far as the record shows, and arranged with the bank upon payment of $50 on principal to again carry the item in plaintiffs’ account another two months. In view of plaintiffs’ method of handling the previous Schweizer notes at maturity the defendant bank was fully justified in assuming that the note in question was only a tentative or conditional credit item carried for plaintiffs’ benefit in their commercial account, rather than a discount of the note. Perhaps in a strictly technical sense it cannot be said that the bank held this and the two preceding notes for collection; but the transaction as viewed by the parties concerned obviously contemplated ultimate collection for the benefit of plaintiffs. If such were not the case it would seem that in both the first and second renewal notes the bank would have been named as payee instead of plaintiffs. The trial court expressly found that “the renewal notes of April 1st and June 2d were taken by the defendant bank at the request of the payees.” As noted, the amount of each of these renewals was credited to plaintiffs’ account; and obviously at the same time their account must have been debited with the amount of the matured note which was then surrendered. The renewal notes, as well as the original note, were payable at plaintiffs’ office, not at the bank. We think that each of these notes by reason of the obvious understanding between the plaintiffs and the bank remained the property of the former; and as stated in People’s State Bank v. Miller, 185 Mich. 565, hereinafter quoted, the mere fact that plaintiffs were allowed to check against the credit resulting from these notes to their account does not change the import of the transaction.
“It seems to be a general rule that when checks or other commercial paper are deposited in a bank indorsed ‘for collection,’ or where there is a definite understanding that such is the purpose of the parties at the time of the deposit, the title to the paper remains in the depositor. See note to Fayette National Bank v. Summers, 105 Va. 689 (54 S. E. 862, 7 L. R. A. [N. S.] 694); 5 Cyc. p. 493. And the mere fact that the depositor is allowed to check against the credit does not change the import of the transaction, so as to preclude the bank from charging back the amount of credit if the check deposited is not paid. The bank may, as a matter of favor and convenience, permit checks to be drawn against it before payment; the depositor, in the event of nonpayment,'being responsible for the sums drawn, not by reason of his indorsement, the check not having-ceased to be his property, but for money paid. 3 R. C. L. (under title ‘Banks’) p. 522.” People’s State Bank v. Miller, supra.
“But, after all, the question is one of the agreement of the parties, either express or implied, from the general course of business between them. There can be no doubt that if a draft or other paper is delivered to a bank for collection, the mere fact that the indorsement of the owner is unrestricted, will not, as between him and the bank, make the latter the owner of the property.
“Neither is it conclusive upon the question of ownership of the paper that before collection the amount of it is credited to the customer’s account, against which he has the privilege of drawing by check. It has been frequently held, with the approval of the best text writers, that if paper is delivered by a customer to a bank for collection, or ‘for collection and credit,’ a credit of the amount to the customer before and in anticipation of collection will be deemed merely provisional, and the privilege of drawing against it merely gratuitous, and that the bank may cancel the credit, or charge back the paper to the customer’s account, if it is not paid by the maker or drawee. Giles v. Perkins, 9 East’s T. R. 12 (103 Eng. Rep. Repr. 477); Levi v. National Bank of Missouri, 5 Dill. 104 (Fed. Cas. No. 8,289); Balbach v. Frelinghuysen (C. C.), 15 Fed. 675. The right of banks to do this in case of the deposit of checks on other banks, without any special contract, is generally exercised and recognized.” In re State Bank, 56 Minn. 119 (57 N. W. 336, 45 Am. St. Rep. 454).
While the context' above quoted refers primarily to checks and drafts which presumably are due forthwith, we think with equal reason and justice the same rule should be applied to short-time paper when such is clearly shown to be the understanding between the parties themselves. And in the instant case “notes” were expressly included in the printed notice in plaintiffs’ pass book wherein the bank reserved the right to charge them back in case of nonpayment. Notwithstanding the testimony in the record that such notice was not called to plaintiffs’ attention at or prior to the time of this transaction, we think they are still bound thereby under the circumstances of this case. This provision in the pass book covers both “items on deposit or for collection.” We think it is a strained and untenable conclusion to hold that the Schweizer notes were not “items on deposit” in plaintiffs’ account. Clearly and conclusively they were, and no other conclusion is justified by this record.
The circuit judge correctly found that the notice in the pass book under the testimony in this case constitutes a contract between depositors and the bank. Contracts between a bank and its depositors should be required to be performed and must be construed in the same way as contracts between other parties. 3 R. C. L. p. 450. A hank deposit may be subject to any agreement which a depositor and the bank may make with respect to it so long as the rights of third parties are not injuriously affected thereby. 7 C. J. p. 642. If plaintiffs had possessed actual knowledge of the printed notice in their deposit book, without question they would be bound thereby. "We think under the circumstances of this case plaintiffs cannot be heard to say they did not have knowledge of this phase of their contractual relation with the defendant bank. They had been banking with the defendant bank for upwards of ten years. Their pass book in which this item was entered had been used by them for upwards of four years and contained a record of approximately 250 deposits. They are chargeable at least with constructive notice, on the same theory and for the same reason that a depositor who receives his return checks and his pass book is bound by the entries therein in the event he fails within a reasonable time to examine it, if to hold otherwise works a prejudice to the bank. Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96 (6 Sup. Ct. 657). See, also, note and numerous citations in 7 C. J. p. 638. We have recently held a depositor owes his bank the duty to use ordinary care in examining the returned checks and statements. Detroit Piston Ring Co. v. Wayne County, etc., Bank, 252 Mich. 163, 179. It is equally true that a depositor is bound to use ordinary care and diligence in becoming informed of the contents of reasonable provisions plainly printed in his pass book which constitute a part of the contractual relation between himself and the bank.
For the reasons indicated the judgment entered in the circuit court must be. set aside. The case is remanded to the circuit court, with direction to enter judgment for defendant. Appellant will have costs of this court.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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] |
Butzel, C. J.
A judgment in tort in favor of plaintiffs Kirker against defendant Larson was affirmed by this court on condition that the amount thereof be reduced by the filing of proper remittitur (see Kirker v. Larson, 252 Mich. 136). The declaration filed in the lower court contained two counts in fraud and one in assumpsit, all relating to the same transaction. The assumpsit count was based upon an implied promise to repay the damages caused by the fraud; it ended with the common counts. The case was tried without a jury and the trial court specifically found defendant liable for fraud. The court said:
“It is just as much a legal fraud for one to make statements of which he has no knowledge or in reckless disregard of the truth as to make statements knowing them to be false.”
There not having been any election or waiver of counts by plaintiffs, nor any general verdict by a jury, but a finding by the trial judge that defendant was guilty of fraud, it removed all uncertainty on what counts the judgment was based. It was on the fraud counts, and not on the common counts, of the declaration. On defendant’s motion, the trial judge amended his findings by stating that defendant did not make any representations with specific and wilful intent to defraud. The judgment, however, remained one in tort.
Plaintiffs sued out a capias ad satisfaciendum or body execution. Defendant appeals from the order denying a motion to recall this body execution. He claims that by combining the counts in tort with the one in assumpsit, plaintiffs waived the right to the issuance of a body execution; that on account of the court’s amended findings the defendant was not guilty of specific and wilful intent to defraud; that the prohibition of the Constitution of the State of Michigan against imprisonment for debt protects defendant from being taken on a body execution.
Under 3 Comp. Laws 1929, . § 14007, plaintiffs might have brought an action on the case for fraud or one in assumpsit arising out of an implied promise of repayment on account of the fraud. In either case, upon a proper declaration and affidavit being-filed, a capias ad respondendum could have been issued. 3 Comp. Laws 1929, § 14074; Mintz v. Jacob, 163 Mich. 280. It was not improper to add the common counts to the special count in assumpsit arising out of implied promises of repayment on account of fraud. First National Bank v. Steel, 136 Mich. 588; Bogle v. Meyering, 161 Mich. 472. It would not have been proper .to sue on the common counts without a special count. Burchy v. Carpenter, 181 Mich. 78. In the present case, as defendant was specifically found guilty of fraud, the common counts neither added to nor subtracted from the other claims set forth in the declaration and had the same effect as if they were surplusage.
Section 14075, 3 Comp. Laws 1929, in providing when a case may be started by a writ of capias ad respondendum on tort claims, states:
“Personal actions may be commenced by capias ad respondendum in cases of claims for damages, other than those arising upon contract, express or implied, in like manner as stated in the preceding-section.”
No distinction is made in this section between torts that are wilful and those that are not; apparently all torts are included. Furthermore, it would be exceedingly difficult to determine when a misrepresentation was wilful and when it was not. •
The objection is made by defendant, however, that article 2, § 20, of the Constitution of Michigan, prohibits the issuance of a capias ad respondendum in this case. It provides:
“No person shall be imprisoned for debt arising out of, or founded on a contract, express or implied, except in cases of fraud or breach of trust, or of moneys collected by public officers or in any professional employment.”
In the instant case the judgment did not arise ex contractu. It was one in tort, i. e., fraud in inducing a contract. It is true that a contract is involved but the wrong is the fraud from which damages resulted. In Forsythe v. Washtenaw Circuit Judge, 180 Mich. 633 (L. R. A. 1915A, 706), the court stated:
“It is obvious that the plaintiff in the principal case might have proceeded against relator under the Constitution as well as under the statute cited, supra, by causing to issue a writ of capias ad respondendum as commencement of suit.”
. The mere fact that the tort in the present case was an unintentional one does not change the nature of the wrong from a tort to a debt arising out of a contract.
Even had' the .liability of defendant arisen out of contract, “cases- of fraud” are excepted from the quoted constitutional prohibition. There is no indication that cases involving unintentional fraud were intended to be excepted. Tbe affidavit in support of a writ of capias ad respondendum is sufficient without an allegation that.the fraud was wilful. The order of the circuit judge refusing to quash the capias ad satisfaciendum is affirmed, with costs to plaintiffs.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Wiest, J.
Leonard B. Órloff filed a bill in the Washtenaw circuit against the Morehead Manufacturing Company and its officers, in which he alleged mismanagement and ultra vires acts by the corporate officers, the existence of surplus profits maintained for the benefit of majority stockholders, and arbitrary refusal to devote the same to payment of dividends, and prayed for restraint, by injunction, the appointment of a temporary receiver for the corporation, and a decree directing dividends to be paid out of the surplus. Restraint was imposed by injunction. Defendants were required to show cause why a receiver should not be appointed, hearing was had thereon, testimony was taken, and the court appointed a temporary receiver “to take full possession of all the property and assets of said More-head Manufacturing Company, * * * and to have charge and control of, and to operate the business of the said Morehead Manufacturing Company, * * * until the further order of this court.”
Upon petition, in behalf of the corporation, we issued our order to the circuit judge to show cause why he should not set aside the order appointing a receiver. The corporation is a going concern, and, upon a capitalization of $45,000, has paid munificent dividends and accumulated a surplus of $258,665.94. In 1930, it paid a dividend of 35 per cent., in 1929, 45 per cent., and in 1928, 150 per cent. This last was really for 1928, 1927, 1926, and 1925, having-been delayed by proceedings in court. Plaintiff obtained 50 shares of the stock from his wife on August 30, 1930, and September 26, demanded that the surplus be distributed to the stockholders, and, October 4th, filed the bill.
The corporation manufactures steam specialties. There are few stockholders and the directors own nearly all of the stock and feel that the welfare of the business and its expansion or adjustment to present industrial conditions require maintenance of the surplus.
The president and general manager receives a salary of $15,000, and also has 15 per cent, on dividends paid. The treasurer receives a salary of $3,600 per year and the secretary $5,350. These salaries are asserted to be excessive. The treasurer borrowed $15,000 from the company, he owns 1,600 shares of stock and put up collateral security for the loan. The son of the treasurer borrowed $5,000 and gave collateral security. Comparatively small loans were made to employees in order to preserve the sales organization. It is claimed that such loans to officers of the company were ultra vires, and evidence an intention to maintain the surplus for private convenience.
Whether the salaries paid the officers are excessive or not must await the hearing on the merits. The -loans to officers, whether valid or void, have not jeopardized the company or the interests of stockholders to an extent justifying’ a receiver. Further loans of like character, if ultra vires, can be enjoined.
Upon a proper showing’, courts may order the directors of a corporation to declare a dividend out of surplus profits. This court so ordered in Dodge v. Ford Motor Co., 204 Mich. 459 (3 A. L. R. 413). We are not, at this time, concerned with the question of when such may be ordered, and merely state that, while the court has power, it will not infringe upon the discretion vested in corporate officers, and in any instance is loath to act unless it is clearly made to appear that the discretion is, in bad faith, abused. This subject, however, is far removed from the action taken in the case at bar in the appointment of a temporary receiver of a successful corporation and placing all its affairs in charge of an officer of the court. Courts may restrain dissipation of surplus profits and direct the retention thereof in a proper case to await the judgment of the court as to whether the same, or some part thereof, should be dispensed in dividends. But no court, upon the record before us, should appoint a temporary receiver. The order appointing a temporary receiver ought not to have been granted, constitutes an unwarranted interference with corporate power, supplants corporate management without need, and is highly detrimental to the corporate existence.
The circuit judge is directed to vacate the order appointing a temporary receiver. Plaintiff herein will recover costs against plaintiff in the equity suit.
Clark, McDonald, Potter, Sharks, North, and Fead, JJ., concurred. Butzel, C. J., did not sit. | [
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North, J.
Plaintiff, as administratrix of the estate of her husband, Leo Benhard Haara, brought this suit against the defendants to recover damages incident to the death of Mr. Haara which was caused by an automobile collision. The jury found for defendants and plaintiff has appealed. The main questions presented are that the verdict was contrary to the great weight of the evidence, and the trial court erred in charging the jury in the manner hereinafter noted.
On January 1, 1929, plaintiff’s decedent and a helper were operating a truck with a trailer traveling in a westerly direction upon U. S. 112 at a point about one and a half miles east of the village of Allen. By reason of snow and ice this paved highway at the place in question was slippery and these vehicles stalled when part way up a long hill. Before coming to a full stop the truck' and trailer backed some little distance down the hill and in so doing came to a position where they extended from the southerly side of the pavement in a northwesterly direction to. a point within three or four feet of the northerly side. This happened shortly before five o’clock in tbe morning while it was still dark. Plaintiff’s decedent at once placed a lighted red lantern some distance west and at the top of the' hill to warn approaching traffic. There is a dispute in the testimony as to whether the trailer at the time of the accident carried a lighted tail light; and the testimony as to there having been other lights on the rear or right-hand side of the trailer, which might have been visible to traffic approaching from the east, as printed in this record, is very indefinite and unsatisfactory. Evidently witnesses in giving-testimony referred to a drawing or outline. Decedent’s helper testified:
“There were three green lights, and here was a red light, on the corner. One green light over here and one red light here, there were four lights. * * * There was a red light hanging over here and a red light hanging over here, that is, on the side towards the ditch.”
Testimony so taken conveys little or no definite meaning when read from the printed record; and the too prevalent practice of taking testimony in this manner is not to be commended. These vehicles stood in the position indicated 25 or 30 minutes prior to the approach of defendant’s automobile. As Mr. Haara and his helper were attempting to place a chain on the right-hand rear wheel of the truck, the helper observed an automobile belonging to Mr. Leon J. Vreeland and driven by Mr. Gross approaching from the east. Robert Vreeland, the son of Mr. Leon J. Vreeland, was riding in this car. Mr. Vreeland, Sr., was following some little distance behind in another automobile which he was driving for delivery to Chicago. Upon seeing the approaching vehicle, the helper warned Mr. Haara who thereupon seized a lighted red lantern and moved quickly to a point near the right-hand front wheel of the trailer at which instant the collision seems to have occurred. Mr. Haara was seriously injured and died while en route to the hospital.
At the time of the accident it was snowing intermittently: and the driver of defendant’s machine testified that as he approached the point of accident he saw “a big mass in the road; ” the snow just lifted for a second; that he tried to stop but the road was slippery, his automobile skidded, and the collision with the trailer occurred. The impact was substantially at the right front wheel of the trailer. Other detailed circumstances may be omitted because the case can be disposed of upon the assumption that the driver of defendant’s car was guilty of negligence in driving at such a rate of speed that he was not able to stop his car or bring it under control within the range of his vision. Appellant’s contention that the verdict of the jury is against the great weight of evidence will be controlled by the determination as to whether the record discloses a question of fact for the jury as to Mr. Haara’s contributory negligence. It is appellees’ contention that in this regard there was an issue of fact because of the conflict in the testimony as to whether the trailer, at the time of the accident, was’ carrying a lighted tail light or was otherwise properly lighted; and because of the testimony showing that Mr. Haara immediately before the collision moved from-a place of comparative safety into the pathway of the approaching car; and further, because Mr. Haara did not timely see the approaching automobile and give warning of the dangerous situation.
As to each of the claimed grounds of contributory negligence there was testimony in consequence of which the minds of reasonable men might come to a different conclusion. Therefore an issue of fact as to the controlling question of Mr. Haara’s contributory negligence was presented. This phase of the case was fairly submitted to the jury, and upon this review we do not find that the verdict in favor of the defendants was contrary to the overwhelming weight of evidence. The determination of the jury is binding on the appellate court. Hillman Twp. Bd. v. Empire Mut. F. Ins. Co., 253 Mich. 394; Gorman v. Jaffa, 248 Mich. 557.
One of the two remaining alleged errors on the part of the trial court is based upon the use of the word “slightest” in the following portion of the charge:
“If you find that the defendant was guilty of negligence and find that by a preponderance of the proof, the burden being upon the plaintiff to establish it by such a rule, by such preponderance, and you find that the plaintiff at the same time was free from any negligence which contributed to the injury and when I say any negligence, I mean even the slightest, and find this by a preponderance of the proof as well, then you will pass to the question of whatever damages were suffered.”
Without holding that the exact wording of the charge is an accurate statement of the law, we are of the opinion that at least as used in the context of the charge it was not prejudicial. The quoted sentence is from the very early part of the charge where the court was obviously attempting to lay before the jury a general outline of the issues involved. In the same paragraph he further stated:
“You will let me state that so that there will be no doubt about the question and that the court will not be misunderstood. . That the two things the burden is upon the plaintiff to establish, the two things: First, that the defendant was guilty of negligence. Second, that the plaintiff was free from negligence; and establish these two things by a preponderance of the proof, before yon pass to the assessment of damages.”
In the next paragraph the court properly defined negligence and contributory negligence, and particularly applied the same test as to what constituted negligence on the part of the defendant and as to what constituted contributory negligence on the part of Mr. Haara.
The remaining asserted error involves the following portion of the charge to the jury:
“If you find that at the time of the collision there was no tail light on the trailer and the lack of such tail light was one of the causes of such collision, then the said Haara was, as a matter of law, guilty of contributory negligence and the plaintiff cannot recover in this case and your verdict shall be for the defendant.”
Appellant asserts that the court erred in using in the above context the expression “as a matter of law. ’ ’ Had this expression when so used meant that the court held as a matter of lato that Mr. Haara was guilty of contributory negligence, it would have been error. Clearly the court did not so use the expression. Instead he submitted this'question to the jury as an issue of fact and the thought obviously conveyed to the jurors was that if they found there was no tail light on the trailer and that this circumstance was a cause of the collision, then under the law plaintiff’s decedent was guilty of contributory negligence and could not recover. In such a statement there is no error.
The judgment entered in the lower court is affirmed, with costs to appellees.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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RONAYNE KRAUSE, J.
Defendant appeals by right an order granting summary disposition pursuant to MCR 2.116(0(10) in favor of plaintiff and denying it to defendant. This case involves computation of work-loss benefits under the no-fault act, MCL 500.3101 et seq. We affirm.
Plaintiff was injured in a serious automobile accident and sought wage-loss benefits from defendant, her insurer. Plaintiffs wage-loss benefit under the no-fault act is governed by MCL 500.3107(l)(b), which provides that personal protection insurance benefits are payable for
[w]ork loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he or she had not been injured. Work loss does not include any loss after the date on which the injured person dies. Because the benefits received from personal protection insurance for loss of income are not taxable income, the benefits payable for such loss of income shall be reduced 15% unless the claimant presents to the insurer in support of his or her claim reasonable proof of a lower value of the income tax advantage in his or her case, in which case the lower value shall apply. Beginning March 30,1973, the benefits payable for work loss sustained in a single 30-day period and the income earned by an injured person for work during the same period together shall not exceed $1,000.00, which maximum shall apply pro rata to any lesser period of work loss. Beginning October 1, 1974, the maximum shall be adjusted annually to reflect changes in the cost of living under rules prescribed by the commissioner .... [Emphasis added.]
Both parties agree that the adjusted benefit is now $4,713.
Plaintiff is a special education teacher on a yearly contract with a yearly salary of $63,895. Plaintiff had the option of electing to he paid in 21 installments while school was in session or in 26 biweekly installments throughout the entire year, and she elected the latter. She sought benefits for the 2008-2009 school year. Plaintiff and the trial court computed her wage-loss payments by dividing her yearly salary, less fifteen percent, by twelve months. She and the trial court therefore found she was entitled to $4,525.90 a month. Because this is below the maximum monthly amount payable, plaintiff was therefore entitled to a total of $54,310.75.
Defendant, however, argues that plaintiffs entitlement should be computed on the basis of the specific number of calendar days plaintiffs contract specified that she should work, notwithstanding the yearly nature of her contract and her election to be paid throughout the year. Defendant therefore would divide plaintiffs yearly salary by her 183 contract workdays and subtract taxes to arrive at $296.78 a day. It then multiplied her daily amount by the number of days actually worked in each 30-day period, making allowances for scheduled days off. It arrived at monthly amounts ranging from $3,858.14 to $6,529.16, as well as two months in the summer with no payment at all. Because many months under defendant’s computational framework would exceed the statutory cap, it would find plaintiff entitled to a total of only $44,268.64.
We review de novo dispositions of motions for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). We also review de novo questions of statutory interpretation. People v Swafford, 483 Mich 1, 7; 762 NW2d 902 (2009). The ultimate goal for the courts when analyzing a statute is to effectuate the intent of the Legislature. Title Office, Inc v Van Buren Co Treasurer, 469 Mich 516, 519; 676 NW2d 207 (2004). “The no-fault insurance act is remedial in nature and must be liberally construed in favor of persons intended to benefit” from its goal of guaranteeing motor vehicle accident victims compensation for certain economic losses. Gobler v Auto-Owners Ins Co, 428 Mich 51, 61; 404 NW2d 199 (1987).
There is nothing ambiguous about MCL 500.3107(l)(b). As defendant correctly points out, statutes must be read as a whole. The first sentence of MCL 500.3107(l)(b) may not be phrased as artfully as possible, but it is clearly a definition provision: “work loss” is defined as “loss of income from work an injured person would have performed ... if he or she had not been injured.” The statute provides an upper limit on the amount of monthly compensation for work loss. However, the statute does not mandate any sort of temporal correlation between the work and the income, as defendant asserts. The calculation might be simplest if a claimant is paid a straightforward, fixed dollar amount per day, but the fact that a salaried employee’s income is not so linearly tied to the strict number of hours worked is not an impediment to proper calculation. Obviously, if a claimant does not actually miss any work, the claimant cannot claim any loss of income under the statute as a consequence. But if a claimant has missed work — as plaintiff has here — it remains only to determine the income lost as a consequence of not performing that work.
Put another way, MCL 500.3107(l)(b) does not say when “work loss” must be deemed to occur. This is reasonable. In a straightforward, hourly employment context, many employers delay paychecks by some number of pay periods, so missing a day of work may not be reflected in a claimant’s paycheck for some time. The income lost because the claimant did not work is therefore a reduction in pay several weeks — or more— later. In the instant case, pursuant to plaintiffs contract, the income plaintiff lost because she did not work was 26 biweekly paychecks, totaling $63,895, that she did not receive for an entire year. Defendant seeks to create a fiction, completely unwarranted by anything in the statute, that plaintiffs lost income was something other than what it actually was.
Defendant’s position is not even substantively consistent with the Attorney General opinion upon which it relies, at least when that opinion is read as a whole instead of as an isolated excerpt. Defendant correctly observes that the statute is intended to compensate an injured person for actual loss of income, not a loss of earning capacity. See Ouellette v Kenealy, 141 Mich App 562, 564-565; 367 NW2d 353 (1984). In OAG, 1979-1980, No 5673, p 684 (April 1, 1980), the Attorney General opined that when a teacher is injured and unable to work during the summer, he or she is not entitled to payment of no-fault benefits. This is an obvious conclusion: unless the teacher teaches summer school or otherwise performs work over the summer, the teacher cannot have lost income from work that he or she would have performed.
Defendant, however, seeks to extrapolate too much from this opinion. The opinion correctly notes in passing that the teacher’s loss “would be on the basis of the actual loss for the time during which the teacher is unable to work as a teacher.” Id. at 687. In contrast to the situation under discussion in the Attorney General opinion, plaintiff here had actual work loss. And as a direct result of that actual work loss, she lost 26 paychecks’ worth of income over a year. Defendant’s attempt to rewrite what plaintiffs income would have been is at odds with reality and with MCL 500.3107(l)(b), which seeks to compensate her for income lost as a consequence of work lost.
The trial court correctly interpreted MCL 500.3107(l)(b) and correctly applied it to the facts of this case.
Affirmed. Plaintiff, being the prevailing party, may tax costs.
We note that plaintiff did so not only for the school year at issue, but the previous year as well.
Attorney General opinions are not binding on the courts and are not even of certain effect on any governmental agencies. Danse Corp v Madison Hts, 466 Mich 175, 182 n 6; 644 NW2d 721 (2002). We do not purport to endorse or criticize OAG, 1979-1980, No 5673, p 684 (April 1, 1980), now, but rather discuss it solely because it was discussed by the parties. | [
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MURRAY, EJ.
Defendant appeals as of right his jury trial conviction of unarmed robbery, MCL 750.530. For this conviction, defendant was sentenced to 3 to 15 years’ imprisonment. We affirm.
I. BACKGROUND
The events in this case were set in motion on March 14, 2008, when Kenneth Conliffe accepted a United Parcel Service (UPS) shipment of a cell phone for Kiara Anderson, his sister’s roommate and defendant’s girlfriend, at the women’s apartment. Under the impression that Anderson was involved in stealing the phone of his sister’s boyfriend, Conliffe explained that after accepting the phone, he threw it in a stream as a means of retaliation. Shortly thereafter, Conliffe received a ride home from his mother and stepfather.
Upon Conliffe’s arrival home, he was accosted in his driveway by defendant, Anderson, and Jovanta Jackson. According to Conliffe’s mother and stepfather, defendant accused Conliffe of stealing a cell phone and then removed Conliffe’s sunglasses at gunpoint before fleeing the scene with his compatriots. Both Conliffe and his mother added that before the assailants left, Jackson told Conliffe to “run his pockets.”
Offering a variation on this version of events, Anderson claimed that after learning from UPS that Conliffe had accepted the cell-phone shipment, she, defendant, and Jackson went to Conliffe’s house to scare Conliffe into returning her cell phone. Anderson elaborated that although Jackson pulled a gun during the altercation and later “passed it” to defendant, she did not recall either man pointing a gun at Conliffe. Similar to Anderson’s assertions, defendant testified that he accompanied Anderson and Jackson in order to retrieve Anderson’s phone and that it was Jackson who pulled the gun during the altercation. Notably, defendant admitted “snatching [Conliffe’s] glasses,” but claimed that he told Conliffe, “you get these back when we get the phone back.” Defendant denied, however, that he had possession of the gun and instead explained that he refused Jackson’s demand to “run [Conliffe’s] pockets” when Jackson threatened Conliffe with the gun after defendant had taken the glasses.
Following their altercation with Conliffe, the assailants drove off, but were pulled over and arrested when police identified their car and license plate number from a dispatch call regarding an armed robbery. During the course of the arrest, police found Conliffe’s glasses and ammunition inside the car. The gun was found the next day in the neighborhood where the assailants were pulled over. Defendant was subse quently tried on a charge of armed robbery, but convicted of the lesser offense previously stated. This appeal ensued.
II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
1. STANDARD OF REVIEW
Defendant first’s assignment of error is that the evidence was insufficient to support his unarmed robbery conviction. Due process requires that, to sustain a conviction, the evidence must show guilt beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). In determining the sufficiency of the evidence, this Court reviews the evidence in the light most favorable to the prosecution. People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005) (opinion by KELLY, J.). We do not consider whether any evidence existed that could support a conviction, but rather, we must determine whether a rational trier of fact could find that the evidence proved the essential elements of the crime beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992), citing People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979). “[Circumstantial evidence and reasonable inferences arising from th[e] evidence can constitute satisfactory proof of the elements of a crime.” People v Lee, 243 Mich App 163, 167-168; 622 NW2d 71 (2000) (citation omitted).
The prosecution does not challenge the foregoing, but nonetheless points out that this Court has cited our Supreme Court for the proposition that sufficiency of the evidence issues are subject to de novo review despite the fact that no Michigan Supreme Court case expressly cites that standard. See People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). In making this argument, the prosecution seems to imply that traditional de novo review would require this Court to overturn a verdict simply because its view of the facts conflicts with the jury’s determination. This, however, misapprehends our duty in these cases.
When our Court reviews an issue “de novo,” it means that we are addressing a legal issue anew, without any deference to the trial court’s conclusion. See, e.g., Mich Ed Ass’n v Secretary of State, 280 Mich App 477, 511; 761 NW2d 234 (2008) (WHITBECK, J., dissenting); Heindlmeyer v Ottawa Co Concealed Weapons Licensing Bd, 268 Mich App 202, 218-219; 707 NW2d 353 (2005). Hence, when reviewing an argument that there was legally insufficient evidence to support a conviction, we do not defer to any decision made by the trial court, but instead employ our independent judicial views while employing the well-settled standards for deciding sufficiency issues. People v Sherman-Huffman, 241 Mich App 264, 265; 615 NW2d 776 (2000), aff’d 466 Mich 39 (2002) (employing de novo review of sufficiency argument from a bench trial conviction). More than two decades ago the United States Court of Appeals for the District of Columbia Circuit accurately and succinctly stated this proposition:
We have concluded that we do not defer to the district court, because we must make our own independent judgment regarding the sufficiency of evidence. In so doing, of course, we may consider and be influenced by the opinion of the expert trial judge who has lived with the case — just as we give weight to one another’s views. This will be particularly so where the trial judge has set forth his reasons with specificity. Moreover, it is the burden of the Government, as it is always the appellant’s burden, to show that the judgment appealed from was wrong. But ultimately, the decision whether or not the evidence was sufficient is a question of law and therefore entirely our own. [United States v Singleton, 226 US App DC 445, 446; 702 F2d 1182 (1983) (en banc).]
See, also, United State v Kelley, 461 F3d 817, 825 (CA 6, 2006).
In light of this explanation, it is easy to see that in articulating the de novo standard of review our prior cases cited Supreme Court decisions that were reviewing the evidence in a de novo fashion, even though not specifically saying so. See, e.g., Tombs, 472 Mich at 459-461 (opinion by KELLY, J.); Johnson, 460 Mich at 732-733; Wolfe, 440 Mich at 516-528. Consequently, we hold that although not expressly articulated by our Supreme Court, the de novo standard of review is proper in reviewing defendants’ challenges that the evidence was insufficient to support their convictions.
2. UNARMED ROBBERY
To be guilty of unarmed robbery, a defendant must (1) feloniously take the property of another, (2) by force or violence or assault or putting in fear, and (3) be unarmed. People v Johnson, 206 Mich App 122, 125-126; 520 NW2d 672 (1994); MCL 750.530. Unarmed robbery is a specific intent crime for which the prosecution must establish that the defendant intended to permanently deprive the owner of property. People v Dupie, 395 Mich 483, 487; 236 NW2d 494 (1975); People v King, 210 Mich App 425, 428; 534 NW2d 534 (1995). Because intent may be difficult to prove, only minimal circumstantial evidence is necessary to show a defendant entertained the requisite intent. People v Strong, 143 Mich App 442, 452; 372 NW2d 335 (1985).
In raising this issue, defendant challenges only the intent element of this offense, in essence arguing that because he walked away after taking the glasses and refused to steal any other items from Conliffe, the prosecution failed to establish that defendant intended to permanently deprive Conliffe of his property. However, to permanently deprive in the context of unarmed robbery “does not require, in a literal sense, that a thief have an intent to permanently deprive the owner of the property.” People v Jones, 98 Mich App 421, 425-426; 296 NW2d 268 (1980). Rather, the intent to permanently deprive includes the retention of property without the purpose to return it within a reasonable time or the retention of property with the intent to return the property on the condition that the owner pay some compensation for its return. Id.
It is clear from defendant’s own rendition of events that he possessed the requisite intent. On this score, defendant explained that he accompanied Anderson and Jackson for the express purpose of retrieving Anderson’s cell phone. When Conliffe subsequently denied having knowledge of Anderson’s phone, defen dant “snatched” Conliffe’s glasses and told him, “you get these back when we get the phone back.” In other words, defendant intended to retain Conliffe’s glasses and only return them on the condition that Conliffe pay compensation in the form of returning Anderson’s phone. Such testimony easily satisfies the intent element of unarmed robbery.
Defendant argues that the testimony of Anderson and Conliffe’s mother contained inconsistencies. However, it is for the jury to determine witness credibility and resolve inconsistencies of testimony. People v Fletcher, 260 Mich App 531, 561; 679 NW2d 127 (2004). And in any event, defendant’s explanation of his words to Conliffe is tantamount to an admission that he possessed the requisite intent.
Before moving on, we note that although not directly challenged by defendant, sufficient evidence existed to satisfy the other elements of the offense. Indeed, Conliffe’s mother and stepfather positively identified defendant as the perpetrator who pointed the gun at Conliffe before taking the glasses. An inference of the use of fear or violence (and even that defendant was armed) is easily deducible from such testimony. Thus, the prosecution met its burden of proving the elements of unarmed robbery beyond a reasonable doubt.
B. SCORING OF OFFENSE VARIABLES
Next, defendant challenges the scoring of Offense Variables (OV) 13, 9, 1, and 2. This Court reviews de novo the application of the sentencing guidelines but reviews a trial court’s scoring of a sentencing variable for an abuse of discretion. People v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008); People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). “Scoring decisions for which there is any evidence in support will be upheld.” People v Elliott, 215 Mich App 259, 260; 544 NW2d 748 (1996). Absent an error in the scoring or reliance on inaccurate information in determining the sentence, this Court must affirm a sentence within the applicable guidelines range. MCL 769.34(10); People v Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004). A trial court’s sentence may be invalid if it is based on a misconception of the law or inaccurate information. MCL 769.34(10); People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997).
1. OV 13
Defendant first claims the court erroneously scored 10 points for OV 13 by including his juvenile adjudications. This argument is unsustainable, however, in view of the plain language of MCL 777.43. Under that statute, OV 13 is scored for a “continuing pattern of criminal behavior” for which 10 points are appropriate if the “offense was part of a pattern of felonious criminal activity involving a combination of 3 or more crimes against a person or property____” MCL 777.43(l)(d) (emphasis supplied). Notably, the plain language of the statute does not require a criminal conviction to score 10 points, but only requires “criminal activity.” A juvenile adjudication clearly constitutes criminal activity because “it amounts to a violation of a criminal statute, even though that violation is not resolved in a ‘criminal proceeding.’ ” People v Luckett, 485 Mich 1076, 1076-1077 (2010) (YOUNG, J., concurring). Therefore, defendant’s poor juvenile track record, rife with adjudications, supported the trial court’s scoring of this variable.
2. ov 9
Next, defendant asserts that because Conliffe was the only victim, his score for this OV should be zero points instead of 10 points. MCL 777.39 governs the scoring of OV 9 and provides in part that the trial court assess 10 points if “2 to 9 victims . . . were placed in danger of physical injury or death. . . .” MCL 777.39(1)(c). For purposes of scoring this variable, a court is to count each person who was placed in danger of physical injury or loss of life or property during the transaction giving rise to the particular offense as a victim. MCL 777.39(2)(a); People v McGraw, 484 Mich 120, 128; 771 NW2d 655 (2009).
The presentence investigation report reveals that during the robbery, Conliffe’s mother jumped between Conliffe and defendant while defendant was pointing the gun at Conliffe’s face for fear that Conliffe or her grandson, who was nearby, could be shot. “[I]n a robbery, the defendant may have robbed only one victim, but scoring OV 9 for multiple victims may nevertheless be appropriate if there were other individuals present at the scene of the robbery who were placed in danger of injury or loss of life.” People v Sargent, 481 Mich 346, 350 n 2; 750 NW2d 161 (2008). Pointing a gun at multiple individuals clearly places them in danger of injury or loss of life. The score of 10 points for OV 9 was appropriate.
3. OV 1 AND OV 2
Defendant challenges the scoring of OVs 1 and 2 on the grounds that he was not convicted of possessing or pointing a firearm toward the victim and because there was no evidence that any other offender was assigned points for the use of weapons in this case. A trial court scores 15 points for OV 1 when “[a] firearm was pointed at or toward a victim,” MCL 777.31(l)(c), and five points for OV 2 when “[t]he offender possessed... a pistol, rifle, [or] shotgun,” MCL 777.32(l)(d). As noted in the foregoing analysis, the presentence investigation report indicates that defendant pointed the gun at Conliffe’s face and, additionally, Conliffe’s mother and stepfather both testified at trial that defendant brandished a gun during the robbery. The trial court did not err in scoring these variables.
C. BLAKELY CHALLENGE
Before concluding, we note that defendant also raises a Blakely challenge, claiming that People v Drohan, 475 Mich 140, 164; 715 NW2d 778 (2006) (finding that Michigan’s indeterminate sentencing scheme is unaffected by Blakely), was wrongly decided. However, as we are bound to follow Supreme Court precedent on this matter, we reject this claim outright. People v Tierney, 266 Mich App 687, 713; 703 NW2d 204 (2005).
Affirmed.
Importantly, whether in federal or state court, it is a defendant’s constitutional right to due process that is at stake in sufficiency cases. Johnson, 460 Mich at 723; Clark v Kansas City Missouri Sch Dist, 375 F3d 698, 701 (CA 8, 2004). And “state and federal courts have the same responsibilities to protect persons from violation of their constitutional rights ....” Wright v West, 505 US 277, 287; 112 S Ct 2482; 120 L Ed 2d 225 (1992) (quotation marks and citation omitted).
Although King refers to armed robbery, the intent element of that offense is identical to that required for unarmed robbery. King, 120 Mich App at 428; Johnson, 206 Mich App at 125-126.
Ironically, despite challenging the intent element of unarmed robbery on these grounds, defendant concedes that he is guilty of larceny from a person, MCL 750.357 — an offense requiring the intent to permanently deprive. People v Perkins, 262 Mich App 267, 271-272; 686 NW2d 237 (2004), aff’d 473 Mich 626 (2005). Despite this inconsistency, we will address defendant’s argument as presented.
According to the presentence investigation report, defendant’s juvenile adjudications included: receiving and concealing a stolen vehicle, unlawfully driving away an automobile, breaking and entering, fourth-degree criminal sexual conduct, and failure to register as a sex offender.
“A sentencing court may consider all record evidence before it when calculating the guidelines, including, but not limited to, the contents of a presentence investigation report....” People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886 (1993).
Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). | [
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] |
SAWYER, EJ.
Elaintiff appeals the Court of Claims’ order granting the University of Michigan Regents (the university) summary disposition. MCR 2.116(C)(8) and (10). We affirm.
On December 12, 2007, plaintiff was injured in a car accident with a student, Samuel Brennan, on the University of Michigan’s campus. The student was driving a car owned by the university, while on university business. On May 7, 2008, plaintiffs counsel sent a letter to the university indicating that plaintiffs counsel intended to represent plaintiff in a lawsuit over the car accident. On October 31, 2008, plaintiff filed a notice of intent to file a claim in the Court of Claims that was signed by plaintiff and plaintiffs counsel. After plaintiff filed an action against Brennan and the university, the trial court granted summary disposition in favor of the university because plaintiff had not complied with MCL 600.6431(3).
The language of MCL 600.6431 clearly states the steps a plaintiff must take in order to make a claim against the state:
(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.
(3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.
The filing requirement is a condition precedent to sue the state. See Reich v Hwy Comm, 43 Mich App 284, 287-289; 204 NW2d 226 (1972). When interpreting statutes, the court looks to the language of a statute first. Only if a statute is ambiguous or in conflict with another provision does a court clarify through judicial construction. Lansing Mayor v Pub Serv Comm, 470 Mich 154, 157, 166; 680 NW2d 840 (2004). The Legislature is presumed to have written the statute to mean what the Legislature intended it to mean. People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008); Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007). MCL 600.6431(3) clearly states that plaintiffs with personal injury claims shall file a notice of intention to file the claim or the claim itself in the Court of Claims within six months of the event giving rise to the claim.
Plaintiff argues that she has substantially complied with the statute, but substantial compliance does not satisfy MCL 600.6431(3). Subsection (3) clearly states that a “claimant shall file with the clerk of the court of claims . .. within 6 months following the happening of the event. ...” (Emphasis added.) The word “shall” designates a mandatory provision. Walters v Nadell, 481 Mich 377, 383; 751 NW2d 431 (2008); People v Francisco, 474 Mich 82, 87; 711 NW2d 44 (2006). Clear statutory language must be enforced as written. Fluor Enterprises, Inc v Treasury Dep’t, 477 Mich 170, 174; 730 NW2d 722 (2007); People v Gillis, 474 Mich 105, 115; 712 NW2d 419 (2006). Here, because plaintiff brought a personal injury claim, plaintiff had to file a notice of intention to file a claim with the Court of Claims within six months of the accident. She did not. The facts show that plaintiff filed a notice of intention to file a claim with the Court of Claims months past the six-month statutory requirement. Plaintiff did not comply with the requirements of MCL 600.6431(3).
Plaintiff also argues that the state must show prejudice when a plaintiff does not comply with a statutory filing requirement. But in Rowland, the Michigan Supreme Court overturned several cases that had required the state to show actual prejudice when a plaintiff failed to comply with a statutory filing requirement. Rowland, 477 Mich at 200, 213. The Court in Rowland stated that because the language of the statute at issue in that case was clear regarding its notice requirement, the Court would not give the statute any judicial construction. The filing requirement was strictly applied. Id. at 200 (interpreting the 120-day filing requirement of MCL 691.1404). The Court in Rowland returned to the well-founded principle that the Legislature is presumed to have written what the Legislature meant, and courts will not use judicial construction where the meaning of a statute is clear. Id. at 219. The filing requirement must be applied as it is written.
We recognize that Rowland dealt with a different notice requirement than does this case. There does not appear to be any published decision of either this Court or the Supreme Court that definitively determines whether the Rowland rationale should also be applied to the notice requirements of MCL 600.6431. Indeed, two justices of the Supreme Court disagreed on this point in separate statements to an order denying leave to appeal in Beasley v Michigan, 483 Mich 1025 (2009). Then Chief Justice KELLY, in her concurring statement, rejected the defendant’s argument that Rowland should be applied to the notice provision of MCL 600.6431(3), concluding that Rowland was distinguishable because it dealt with a different statutory provi sion. Id: at 1025 (KELLY, C.J., concurring). Justice CORRIGAN, on the other hand, in her dissenting statement to the order denying leave to appeal, opined that Rowland does apply to the notice provisions of MCL 600.6431. In particular, she noted that Rowland “rejected earlier caselaw that had assumed notice provisions are unconstitutional if they do not contain a prejudice requirement,” as well as the fact that the notice requirement in Rowland “is substantively identical” to the notice provisions of MCL 600.6431. Id. at 1028 (CORRIGAN, J., dissenting). Justice CORRIGAN also noted that the statute clearly provides that no claim may be maintained unless the notice is filed with the Court of Claims, which did not happen. Id.
We conclude that Justice CORRIGAN’S view represents the better interpretation of the issue. While Rowland did directly deal with a claim arising under the defective-highway exception to governmental immunity, we, like Justice CORRIGAN, are not persuaded that the Rowland rationale is somehow limited to MCL 691.1404. Indeed, one of the cases that Rowland reviewed and rejected, Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973), overruled by Rowland, 477 Mich 197, dealt with a six-month notice requirement under the Motor Vehicle Accident Claims Act, MCL 257.1118. In rejecting Carver and other cases, Rowland stated that “[i]n reading an ‘actual prejudice’ requirement into the statute, this Court not only usurped the Legislature’s power but simultaneously made legislative amendment to make what the Legislature wanted — a notice provision with no prejudice requirement — impossible.” Rowland, 477 Mich at 213. Ultimately, Rowland, 477 Mich at 219, concluded that “MCL 691.1404 is straightforward, clear, unambiguous, and not constitutionally suspect. Accordingly, we conclude that it must be enforced as written.” The same can be said of MCL 600.6431(3).
In sum, plaintiff did not comply with the plain language of the filing requirement of MCL 600.6431(3). Subsection (3) clearly requires that a plaintiff with a personal injury claim against the state must file a notice of intention to file the claim or the claim itself with the clerk of the Court of Claims within six months of the event giving rise to the claim. Plaintiff did not file her notice of intention to file a claim with the Court of Claims until several months after the six-month deadline had passed. Accordingly, the Court of Claims properly granted summary disposition to the university.
Affirmed. Defendant University of Michigan Regents may tax costs.
Saad, J., concurred.
Judge Sawyer acknowledges that he was previously a member of a Court of Appeals panel that issued an opinion that reached a different conclusion. Cunmulaj v Chaney, unpublished opinion per curiam of the Court of Appeals, issued February 12, 2009 (Docket Nos. 282264 and 282265). Specifically, that opinion reached the conclusion that “[t]here is no reason to extend our Supreme Court’s holding [in Rowland] to overturn the previous standard of substantial compliance with statutory notice requirements in other statutes.” Id. at 3. Because Cunmulaj is an unpublished opinion, it is of course not precedentially binding. MCR 7.215(C)(1). Judge Sawyer, upon giving the matter further consideration, is now persuaded that Cunmulaj erroneously decided this point and disavows that opinion to the extent that it conflicts with the opinion in the case at bar. | [
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Per Curiam.
Defendant pleaded guilty to two counts of second-degree home invasion, MCL 750.110a(3), and one count of conspiracy to commit second-degree home invasion, MCL 750.157a and MCL 750.110a(3). The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to concurrent prison terms of 106 months to 30 years for each conviction. Defendant appeals by delayed leave granted, raising issues related to his sentencing. We affirm.
I. FACTS AND PROCEDURAL HISTORY
At the plea hearing, defendant admitted that he participated with another person in the breaking and entering of two different houses. He indicated that he was aware that his codefendants were going to go into the houses without permission with the intent to steal and that he was the “lookout” and stayed in the car. He also indicated that items were in fact stolen from the houses. Defendant further admitted that he agreed with another person to break into the houses to steal items and that he would be the lookout. The trial court found that the plea was given understandingly, voluntarily, and accurately and accepted the plea. The court subsequently sentenced defendant as a third-offense habitual offender to concurrent sentences of 106 months to 30 years, with no days of credit, to be served “consecutive to a sentence for which you are on parole.” The court denied defendant sentencing credit because of defendant’s status as a parolee at the time of the offenses.
II. ANALYSIS
Defendant argues that the trial court based his minimum sentences on facts not proved to a jury beyond a reasonable doubt, in contravention of Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). He also argues that the trial court improperly scored offense variables (OVs) 13 and 16 and that he is entitled to sentence credit for the time spent in jail between his arrest and sentencing.
A. THE DECISION IN BLAKELY
Our Supreme Court has held that Blakely does not apply to Michigan’s indeterminate sentencing scheme. People v Drohan, 475 Mich 140, 164; 715 NW2d 778 (2006). Accordingly, defendant’s argument that the trial court violated Blakely in scoring the guidelines is without merit.
B. OV 13
Defendant challenges the assessment of 10 points for OV 13. The version of MCL 777.43 in existence on the date of defendant’s offense, February 25, 2005, provided for the assessment of 10 points if the “offense was part of a pattern of felonious criminal activity involving a combination of 3 or more crimes against a person or property. ..MCL 777.43(l)(c), as amended by 2002 PA 666. Additionally, MCL 777.43(2)(a) instructs that “all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction.”
Defendant pleaded guilty of participating in the home invasion of a residence located at 15580 Graves Road, of participating in the home invasion of a residence located at 17900 Dexter Trail, and of conspiring with another individual to commit the home invasions. Defendant does not dispute that the two second-degree home invasion convictions may be used to score OV 13 because those convictions are for crimes against persons. See MCL 777.16f. He asserts, however, that the conspiracy conviction cannot be used to score OV 13 because conspiracy is a crime against public safety under MCL 777.18, not a crime against a person or property. Defendant further asserts that, if the conspiracy offense is not counted, there are no other crimes against a person or property committed by defendant within five years of these offenses that may be combined with the two home invasion convictions in order to establish the three convictions necessary to sustain a score of 10 points under 777.43(l)(c). We review de novo this issue involving the interpretation and application of the statutory guidelines. People v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008).
A review of the presentence investigation report reveals that defendant did not engage in any other criminal activities that were directed against persons or property within the five years preceding the present offenses. The question, therefore, is whether defendant’s conspiracy offense constitutes a separate crime against a person or property for purposes of scoring OV 13. There is no published authority on the question whether a conspiracy conviction may be used to score OV 13.
Conspiracy is designated as a crime against public safety in MCL 777.18. At the time of defendant’s offenses, MCL 777.21(4) provided, “If the offender is being sentenced for a violation described in [MCL 777.18], determine the offense class, offense variable level, and prior record variable level based on the underlying offense.” MCL 777.21(4), as amended by 2000 PA 279 (emphasis added). The command of MCL 777.21(4) to determine the offense variable level “based on the underlying offense” reflects the intent of the Legislature that the nature of the underlying offense (and not the fact that a conspiracy had been committed) controls when and how an offense variable is scored. Reading MCL 777.18, MCL 777.21(4), and MCL 777.43(1)(c) together as a harmonious whole, see Cadle Co v City of Kentwood, 285 Mich App 240, 249; 776 NW2d 145 (2009), we conclude that the command of MCL 777.21(4) is sufficiently sweeping in scope to have required the trial court to consider the nature of the conspiracy for which defendant was convicted in this case when scoring OV 13. Defendant was convicted of conspiring to commit home invasions. A home invasion is a crime against a person. Because the underlying nature of the conspiracy involved a crime against a person, the conspiracy conviction was properly used when scoring OV 13 in this case.
c. ov 16
In light of our conclusion that the trial court properly scored OV 13, any error in the scoring of OV 16 was harmless. The trial court assessed 5 points for OV 16. If those 5 points are subtracted from the 15-point OV total, the remaining 10 points assigned to OV 13 are sufficient to maintain the OV level at II, MCL 777.64, and, therefore, the point reduction would not trigger a need to rescore the guidelines. An erroneous score that would not, when corrected, result in a different recommended minimum sentence range does not require resentencing. People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).
D. JAIL CREDIT
The trial court declined to award defendant sentence credit in light of defendant’s status as a parolee. Any sentence credit must be applied to the sentence that defendant was still serving while on parole. People v Idziak, 484 Mich 549, 552, 565-567; 773 NW2d 616 (2009); People v Filip, 278 Mich App 635, 640-643; 754 NW2d 660 (2008). In Idziak, the Court rejected arguments identical or similar to those now raised by defendant — i.e., that sentence credit is required by MCL 769.11b, and the Due Process, Equal Protection, and Double Jeopardy Clauses. Idziak, 484 Mich at 568-570, 572-574. Thus, this argument is without merit.
Affirmed.
MCL 777.43 was amended by 2008 PA 562, effective April 1, 2009. MCL 777.43(l)(c) is now found at MCL 777.43(l)(d), but we will use the preamendment designation to refer to the specific subdivision at issue here.
MCL 777.21 was subsequently amended by 2006 PA 655, effective January 9, 2007.
We note that this Court previously held in three unpublished cases decided on the same day by the same panel that conspiracy convictions are not properly scored under OV 13 because they are classified as crimes against public safety. See People v Williams, unpublished opinion per curiam of the Court of Appeals, issued March 10, 2005 (Docket No. 253299); People v Barker, unpublished opinion per curiam of the Court of Appeals, issued March 10, 2005 (Docket No. 253403); People v Johnson, unpublished opinion per curiam of the Court of Appeals, issued March 10, 2005 (Docket No. 253943). In addition to not being binding precedent, MCR 7.215(C)(1), we also find these cases to be of limited persuasive value because the effect of MCL 777.21(4) on the resolution of the claim that points cannot properly be assessed under OV 13 for conspiracy convictions was not raised or discussed.
We note that because all three offenses involve crimes against a person, the trial court could properly have assessed 25 points for OV 13 under MCL 777.43(1)(b), as amended by 2002 PA 666. MCL 777.43(1)(b) is now MCL 777.43(1)(c).
Two of the remaining issues raised by defendant relate to arguments he raised in support of granting his delayed application for leave to appeal and, therefore, need not be addressed on appeal. Additionally, the issue regarding ineffective assistance of counsel appears to have been raised to avoid the issue-preservation requirements with regard to defendant’s challenge to the scoring of the guidelines. Thus, this issue need not be addressed on appeal. | [
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] |
O’CONNELL, EJ.
Fetitioner, MS, appeals by delayed leave granted the denial of his petition seeking removal from the sex offender registry under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. We affirm.
In 1999, when MS was 13 years old, the Oakland County Prosecutor filed a delinquency proceeding and petition alleging three counts of fourth-degree criminal sexual conduct (CSC) against him under MCL 750.520e(l)(b). MS entered a plea of admission to one misdemeanor count of fourth-degree CSC. The trial court placed MS in the intensive probation program and terminated its jurisdiction over MS on November 29, 2000, when he was 15 years old. Nearly eight years later, on July 31, 2008, MS filed his petition for removal from the sex offender registry.
The trial court denied MS’s petition as untimely under MCL 28.728c(4). At the hearing on the petition, the trial court stated, “The statute is very clear. I don’t agree with the statute.... [B]ut I’m bound by the statute.” The court then inquired of MS:
Court: ... You’ve graduated from college, and have had no problems?
[MS]: Yes, your Honor.
Court: Completed probation?
[MS]: Yes, everything.
Court: And you’re how old, now?
[MS]: I am — what was that?
Court: How are you now [sic]?
[MS]: I’m 23 years old.
Court: Ten years. I mean, this is the typical example of the person who should not have — still be on the registry. But I didn’t write the statute. [Defense counsel] is an excellent lawyer, and my suggestion is you sit down and write a letter to your State Representative. Maybe they’ll change the statute, but I’m bound by the statute and the motion is denied.
This Court has summarized the SORA provision that allows certain juvenile offenders to be removed from the sex offender registry:
Certain juveniles required to register as sex offenders who are identified under MCL 28.728c may petition the court in which they were convicted to limit or terminate the registration requirement. Pertinent to this case, MCL 28.728c(1) provides that “[a]n individual described in subsection (15) [MCL 28.728c(15)] who is convicted before October 1, 2004 of a violation described in that subsection may petition the court under this section for an order allowing him or her to register under this act as provided in section 8d(1) [MCL 28.728d(1)].” Once an individual is permitted to register under [MCL 28.728d(1)], the lower court is vested with discretion to cease the registration process. [People v Hesch, 278 Mich App 188, 192-193; 749 NW2d 267 (2008).]
To file a timely petition to be removed from the registry under MCL 28.728c(4), an offender who was convicted prior to October 1, 2004, must file the petition before October 1, 2007, or within three years of discharge from court jurisdiction.
MS filed his petition in 2008, nearly eight years after his discharge from the trial court’s jurisdiction. According to MCL 28.728c(4), the petition was untimely. MS argues, however, that MCL 28.728c(4) is unconstitutional on the ground that the statute failed to provide that offenders be notified of the statutory time limits.
We review de novo questions of law, including constitutional questions. People v Stone, 269 Mich App 240, 242; 712 NW2d 165 (2005); In re Wentworth, 251 Mich App 560, 561; 651 NW2d 773 (2002). However, we will not address constitutional issues when, as here, we can resolve an appeal on alternative grounds. People v Krezen, 427 Mich 681, 713 n 32; 397 NW2d 803 (1986) (LEVIN, J., dissenting); Wayne Co v Hathcock, 471 Mich 445, 456 n 10; 684 NW2d 765 (2004).
The SORA provisions at issue apply to juvenile offenders convicted of first-, second-, or third-degree CSC. MCL 28.728c(l) and (15). Specifically, MCL 28.728c(l) provides that “[a]n individual described in [MCL 28.728c(15)] who is convicted before October 1, 2004 of a violation described in that subsection may petition the court under this section for an order allowing him or her to register under this act as provided in [MCL 28.728d(l)].” MCL 28.728c(15) states:
The right to petition under this section applies to all of the following individuals:
(a) An individual who is convicted as a juvenile under . . . MCL 750.520b [first-degree CSC], 750.520c [second-degree CSC], [or] 750.520d [third-degree CSC], ... of committing, attempting to commit, or conspiring to commit a violation solely described in [those sections] if [certain circumstances exist].
(b) An individual who was charged under... MCL 750.520h, 750.520c, [or] 750.520d, with committing, attempting to commit, or conspiring to commit a violation solely described in [those sections] and is convicted as a juvenile of violating, attempting to violate, or conspiring to violate... MCL 750.520e [fourth-degree CSC] [or] 750.520g, if [certain circumstances exist].
The subsection plainly limits the eligibility to petition to individuals charged with first-, second-, or third-degree CSC or convicted of those crimes.
In contrast, the record in this case indicates that MS was charged with fourth-degree CSC and entered a plea of admission to the same charge. Thus, he has no right to petition under the statute. We recognize that it seems paradoxical to allow first-, second-, and third-degree CSC juvenile offenders to terminate registration, but preclude fourth-degree CSC juvenile offenders from terminating their registrations. Respondent notes that fourth-degree CSC juvenile offenders are not included on the public sex offender registry and posits that our Legislature determined that these offenders did not require the opportunity to be removed from the registry. This does not explain, however, why MCL 28.728c(15)(b) allows an offender who was charged with third-degree CSC but convicted of fourth-degree CSC to petition for removal from the registry. Nonetheless, the statute is unambiguous, and we must apply it as written. People v Barrera, 278 Mich App 730, 735-736; 752 NW2d 485 (2008). Despite MS’s apparently clean record during the past 10 years, the charge of fourth-degree CSC at age 13 precluded him from petitioning for removal from the sex offender registry.
Affirmed.
All counts involved a single victim; the record indicates the victim was 13 years old.
The trial court’s order of adjudication listed the Prosecutor’s Advisory Coordinating Council charge code “750.520e1A,” which, according to the August 2003 Bench Guide, refers to criminal sexual conduct-fourth degree (force or coercion). State Court Administrative Office, et al., Criminal Records Reporting MCLIPACC Charge Codes (11th ed), p 120.
Respondent also argues that the trial court lacked jurisdiction to hear MS’s petition. We disagree. MCL 28.728c(4) provides that “[a] petition filed under this section shall be filed in the court in which the individual was convicted of committing the listed offense.” Although the Legislature did not expressly state that the family division of the circuit court has jurisdiction to entertain a petition for removal from the sex offender registry, it appears that MCL 28.728c implicitly expanded the jurisdiction of the court to allow the court to entertain the petition. | [
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The Court orders that a special panel shall not be convened pursuant to MCR 7.215(J) to resolve the conflict between this case and McCahan v Brennan, 291 Mich App 430; 804 NW2d 906 (2011). | [
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PER CURIAM.
Defendant Stanley Wayne Cameron appeals by right his conviction for domestic violence resulting from the assault and battery of his ex-girlfriend, Kristie Yacheson. The trial court found Cameron guilty of domestic violence (third offense). The trial court subsequently sentenced Cameron as a second-offense habitual offender to six months to three years in prison. We affirm.
I. BASIC FACTS
A. DOMESTIC VIOLENCE INCIDENT
During the early morning hours of September 19, 2008, Cameron allegedly abused his ex-girlfriend, Kristie Yacheson. Cameron and Yacheson had lived together and dated off and on from October 2005 until September 2008. At the time of incident, however, Yacheson lived alone in an apartment on 14 Mile Road in the City of Royal Oak.
On the evening of September 18, 2008, Yacheson invited several friends to her apartment. Cameron sent Yacheson a text message asking if he could come over. Although a court order prohibited Cameron from being at Yacheson’s apartment, Yacheson allowed Cameron to visit because he was acting nice and because she still loved him. Yacheson sent Cameron a text message saying he could come over as long as he behaved appropriately. Cameron asked Yacheson if she had any food, and she replied that she did not. Yacheson did not ask Cameron to bring food over, and she did not expect him to bring food. However, when Cameron arrived about 8:00 p.m., he brought some food and beer with him. Because she felt safe with her other friends present, Yacheson let Cameron into her apartment.
Once inside the apartment, Cameron took the food and beer into the kitchen, placed at least one of the beers into the freezer, and began cooking dinner for everyone. At first, Cameron behaved appropriately. However, once everyone started drinking, Cameron’s demeanor changed. Yacheson had two or three beers, a couple of shots of whiskey, and a shot or two of brandy. Cameron drank about the same amount, and he began to show signs of intoxication. Yacheson became increasingly concerned about Cameron’s behavior because she knew from past experience that Cameron sometimes became violent when he drank.
At one point, Yacheson and Cameron entered the kitchen while Yacheson’s friends remained in the living room. While in the kitchen, Yacheson and Cameron began arguing because Yacheson suggested that Cameron slow down his drinking. Eventually, the arguing turned into yelling, and Yacheson told Cameron to leave her apartment. Cameron opened the freezer to retrieve the beer that he brought, but Yacheson said no, and she slammed the freezer shut. Cameron allegedly then pushed Yacheson twice. The second time that Cameron allegedly pushed Yacheson, he pushed her against the refrigerator and stove with enough force to knock the refrigerator and stove askew. Yacheson then tried to push Cameron away, and Cameron allegedly punched or jabbed her in the stomach. Yacheson told her friends in the other room to call 911. Again, Yacheson told Cam eron to leave, and she pushed Cameron out the door of her apartment. As Cameron exited, the police arrived.
Officer Donald Scher of the Royal Oak Police Department arrived at Yacheson’s apartment at 1:06 a.m. on September 19, 2008. The dispatch informed Officer Scher that a no-contact order prohibited Cameron from being near Yacheson’s home. As Officer Scher approached the apartment building, he saw Cameron leaving the premises on the sidewalk. Officer Scher recognized Cameron from prior police calls at the apartment. When Officer Scher yelled for Cameron to stop, Cameron ducked into a locked stairwell at the end of the apartment building. Officer Scher walked around the building to see where Cameron might exit.
Meanwhile, Officer Kathy Szydlowski of the Royal Oak Police Department, who arrived about the same time as Officer Scher, spoke with Yacheson. Officer Szydlowski observed Yacheson crying hysterically. Officer Szydlowski also observed that Yacheson appeared very frightened of Cameron.
When Officer Scher returned to the front of the building, Yacheson pointed out the direction in which she had seen Cameron leaving. Officer Scher spotted Cameron walking westbound away from the building. Again, Officer Scher called out for Cameron to stop, but Cameron began walking faster. Officer Scher lost sight of Cameron as he passed the corner of the building. Officer Scher gave chase, and as he rounded the corner of the building, he heard branches moving in a nearby evergreen tree. He saw Cameron trying to hide under the branches of the tree. Officer Scher radioed that he had found the suspect, and then he arrested Cameron. Cameron struggled as Officer Scher tried to handcuff him, and Officer Scher had to use pepper spray on him. Officer Szydlowski joined Officer Scher and assisted him in handcuffing Cameron.
B. VICTIM’S STATEMENTS TO THE POLICE
After Officer Scher placed Cameron into the back of the police car, Officer Szydlowski interviewed Yacheson. Officer Szydlowski observed that Yacheson appeared to be very upset and that she remained upset throughout the interview. Yacheson told Officer Szydlowski that she had some friends over, she heard a sound at the door, and Cameron opened the door and came into the apartment. Yacheson also told Officer Szydlowski that Cameron charged toward her, backed her into the kitchen, and then pushed her against the refrigerator several times. Yacheson stated that although she tried to get away, Cameron grabbed her from behind and pushed the front of her body against the refrigerator. Yacheson said that she yelled for her friend to call the police, and when Cameron heard that the police were coming, he left the apartment. Yacheson also said that a no-contact order barred Cameron from contacting her, which Officer Szydlowski’s dispatcher verified. Officer Szydlowski asked Yacheson to write out a statement, and she did so.
The incident left Yacheson sore, but she did not display any obvious or visible injuries. During her investigation, Officer Szydlowski did not observe any disarray or signs of a struggle in the kitchen, nor did she see any signs of injury on Yacheson. Furthermore, Yacheson did not tell Officer Szydlowski that she had invited Cameron to come over to her apartment earlier in the evening, that he had brought groceries and cooked dinner, and that he had been there for several hours.
At trial, Officer Szydlowski testified that she wanted to ask Yacheson more questions, but Yacheson’s extreme emotional state had rendered her incapable of giving any more information at the scene.
C. PRETRIAL MOTION TO INTRODUCE PRIOR-BAD-ACTS EVIDENCE
On October 20, 2008, pursuant to MCL 768.27b, the prosecutor sought a ruling permitting it to introduce evidence of prior bad acts involving Cameron and Yacheson, as well as Cameron and his ex-girlfriend, Pamela Ponder. Over defense counsel’s objection, the trial court ruled that the prosecutor could introduce other bad-acts evidence at trial to show Cameron’s character.
D. PRIOR-BAD-ACTS EVIDENCE PRESENTED AT TRIAL
1. PRIOR ACTS AGAINST YACHESON
At trial, Yacheson testified that Cameron had previously physically attacked her. On March 5, 2006, when Yacheson and Cameron lived at the Admiral Hotel in Clinton Township, Cameron punched her on the side of her head, and she fell to the ground. Cameron grabbed Yacheson’s cell phone so that she could not call 911, and he broke her phone when he threw it aside. Cameron told Yacheson that he would kill her if she called the police. He then stomped on her and repeatedly hit her. He called her a “whore” and other names as he hit her. Yacheson called the police.
Yacheson also testified that four additional incidents occurred between June 2006 and May 2008. In June 2006, Yacheson lived at the Eastland Hotel in Eastpointe. On June 16, 2006, as Yacheson and Cameron walked outside, Yacheson said hello to a male friend. Cameron then punched the side of Yacheson’s head. Another incident occurred on June 29, 2006, when Yacheson and Cameron started arguing about Yacheson’s cell phone. Cameron demanded that Yacheson hand over the memory card for her phone, and Yacheson refused. Cameron then punched her. The fourth incident occurred on January 16, 2008, when Yacheson lived at the apartment in Royal Oak. Cameron wanted to see Yacheson, but she would not let him enter the apartment. Cameron, who had been drinking, forced his way in through a screen door to get into the apartment. Cameron then forced his way into the bedroom, where Yacheson had barricaded herself, and he took Yacheson’s phone away from her. Cameron punched her in the face. The fifth incident occurred on May 16, 2008, when Cameron came into Yacheson’s apartment and punched her. When Yacheson tried to call the police, Cameron broke her flip phone in half. The neighbors called the police. At trial, Yacheson testified that she had stayed in the off-and-on relationship with Cameron despite the assaults because he apologized each time and because she loved him.
2. PRIOR ACTS AGAINST PONDER
At trial, the prosecutor also elicited testimony that Cameron had also abused another ex-girlfriend. Pamela Ponder testified that she dated Cameron for a few months in 2001. In May 2001, she told Cameron that she wanted to end their relationship. Cameron reacted angrily.
Several other incidents occurred within a week of the breakup. During one incident, Cameron accused Ponder of seeing another man. Cameron hit her on the chin with an open hand. Another incident occurred when Ponder picked up her six-year-old son from school. Ponder had a male friend with her. Because it was warm, Ponder rolled down the windows of her truck. Cameron suddenly ran up and punched Ponder in the throat. A third incident occurred on May 7, 2001. Cameron threw a frozen beer can at Ponder’s face. The impact broke her nose and broke some of her teeth.
E. JURY VERDICT
After hearing the evidence, the jury found Cameron guilty of domestic violence. The trial court sentenced Cameron on May 4, 2009. The recommended minimum sentence under the sentencing guidelines ranged from 2 to 21 months in prison. Defense counsel asked for a minimum sentence of 10 months in prison, to be served concurrently. As previously stated, the trial court sentenced Cameron, as a second-offense habitual offender, to six months to three years in prison for domestic violence (third-offense) to be served consecutively to the sentence that Cameron was already serving. Cameron now appeals.
II. PRIOR-BAD-ACTS EVIDENCE
A. STANDARD OF REVIEW
Cameron argues that the trial court should have excluded evidence of his prior bad acts because it was unfairly prejudicial under MRE 403. Cameron further argues that the jury convicted him of domestic violence based on Yacheson and Ponder’s testimony about prior incidents where Cameron hit them. Cameron claims that the jury essentially heard Yacheson and Ponder’s testimony and then improperly concluded that because Cameron assaulted these women in the past, he must have assaulted Yacheson this time. Cameron contends that, as a result, the trial court reversibly erred when it determined that the prior-bad-acts evidence could be introduced at trial because the prejudicial effect outweighed the probative value of the evidence.
We will not question a trial court’s decision whether to admit evidence absent an abuse of discretion. The abuse of discretion standard involves more than just a difference of opinion. “Further, a trial court’s decision on a close evidentiary question ordinarily cannot be an abuse of discretion.”
B. LEGAL STANDARDS
During the preliminary hearing on October 9, 2008, Yacheson testified that Cameron had a pending domestic violence charge for a prior confrontation between Cameron and Yacheson. Subsequent discovery revealed additional incidents between Cameron and Yacheson, and Cameron and his ex-girlfriend Ponder. Before trial, the prosecutor moved to introduce these prior bad acts at trial. Over defense counsel’s objection, the trial court granted the prosecutor’s motion and determined that Cameron’s prior bad acts of domestic violence were admissible under MCL 768.27b. MCL 768.27b(l) states:
Except as provided in subsection (4), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if not otherwise excluded under Michigan rule of evidence 403.[ ]
The language of MCL 768.27b clearly indicates that trial courts have discretion “to admit relevant evidence of other domestic assaults to prove any issue, even the character of the accused, if the evidence meets the standard of MRE 403.” In analyzing a sister statute, this Court has previously acknowledged that the Michigan Legislature intended to allow juries “the opportunity to weigh a defendant’s behavioral history and view the case’s facts in the larger context that the defendant’s background affords.” MCL 768.27a deals primarily with prior-bad-acts evidence involving crimes against minors. However, because of the similarities in the language of MCL 768.27a and 768.27b, we believe that the Michigan Legislature intended the same policy to apply to domestic violence situations under MCL 768.27b. Thus, prior-bad-acts evidence of domestic violence can be admitted at trial because “a full and complete picture of a defendant’s history . . . tend[s] to shed light on the likelihood that a given crime was committed.”
C. APPLYING MCL 768.27b TO CAMERON’S PRIOR BAD ACTS
In this case, the prosecutor charged Cameron with domestic violence pursuant to MCL 750.81(2). Then, to support the domestic violence charge, the prosecutor moved to admit evidence of Cameron’s prior bad acts under MCL 768.27b. The statutory language and policy considerations of MCL 768.27b clearly demonstrate the Michigan Legislature’s intent to allow prior-bad-acts evidence to be introduced at trial as long as the evidence satisfies the “more probative than prejudicial” balancing test of MRE 403, which provides: “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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Accordingly, this Court must make two distinct inquires under the balancing test of MRE 403. First, this Court must decide whether introduction of Cameron’s prior-bad-acts evidence at trial was unfairly prejudicial. Then, this Court must apply the balancing test and “weigh the probativeness or relevance of the evidence” against the unfair prejudice. Upon completion of this second inquiry, this Court can determine whether the trial court abused its discretion in allowing Cameron’s prior bad acts into evidence.
Under the first inquiry, we conclude that the trial court’s decision to allow evidence of Cameron’s prior bad acts did not unfairly prejudice Cameron at trial. The “unfair prejudice” language of MRE 403 “ ‘refers to the tendency of the proposed evidence to adversely affect the objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.’ ” Moreover, admission of “[e]vidence is unfairly prejudicial when- . .. [the danger exists] that marginally probative evidence will be given undue or preemptive weight by the jury.” However, the Michigan Supreme Court also recognizes that the prosecution does not have to use the least prejudicial evidence to make out its case. In this case, the prejudicial effect of other-acts evidence did not stir such passion as to divert the jury from rational consideration of Cameron’s guilt or innocence of the charged offenses. In fact, the trial court minimized the prejudicial effect of the bad-acts evidence by instructing the jury that the issue in this case was whether Cameron committed the charged offense.
Under the second inquiry, we conclude that any prejudicial effect of the trial court’s decision to allow evidence of Cameron’s prior bad acts did not substantially outweigh the probative value of the evidence. A trial court admits relevant evidence to provide the trier of fact with as much useful information as possible. Here, the trial court found that Cameron’s prior bad acts were relevant and therefore admissible to establish Yacheson’s credibility. The trial court also found that Cameron’s actions were relevant to show that he acted violently toward Yacheson and that his actions were not “accidental” at the time of the incident. Additionally, the evidence of Cameron’s actions on six separate occasions with Yacheson and on three separate occasions with Ponder demonstrated Cameron’s propensity to commit acts of violence against women who were or had been romantically involved with him.
Therefore, Cameron’s prior bad acts were relevant to the prosecutor’s domestic violence charge under MCL 768.27b. Any prejudicial effect of admitting the bad-acts evidence did not substantially outweigh the probative value of the evidence, and the trial court did not abuse its discretion when it allowed Cameron’s prior-bad-acts evidence to be introduced under MCL 768.27b.
III. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
As previously stated, on April 20, 2009, a jury found Cameron guilty of domestic violence (third offense). Cameron argues that the prosecution failed to present sufficient evidence at trial to support a jury’s conviction for domestic violence. When assessing a sufficiency-of-the-evidence argument, an appellate court will view the evidence in a light most favorable to the prosecution to determine if it would support a rational jury’s finding that the elements had been proven beyond a reasonable doubt. In applying this standard, a court must “draw all reasonable inferences and make credibility choices in support of the jury verdict.”
B. LEGAL STANDARDS
The charged offense, MCL 750.81(2), establishes the following guidelines for a domestic violence charge:
Except as provided in subsection (3) or (4), an individual who assaults or assaults and batters his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of his or her household, is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.
The relevant elements of the charged domestic assault offense include (1) the commission of an assault or an assault and battery and (2) a dating relationship between the parties. Cameron does not dispute that he had a dating relationship with Yacheson. However, Cameron denies that an assault or an assault and battery took place on the night of the incident.
The courts have defined a battery as “ ‘an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person.’ ” It does not matter whether the touching caused an injury. Further, the courts have defined an assault as “an attempt to commit a battery or an unlawful act that places another in reasonable apprehension of receiving an immediate battery.” Thus, every battery necessarily includes an assault because a battery is the very “consummation of the assault.”
C. APPLYING THE STANDARDS
In this case, Yacheson testified that Cameron pushed her twice. Yacheson stated that the second time that Cameron pushed her, Cameron pushed her against the refrigerator and stove with enough force to knock the refrigerator and stove askew. Yacheson also testified that she tried to push Cameron away, and Cameron allegedly punched or jabbed her in the stomach. Officer Szydlowski testified that she arrived on the scene and observed Yacheson crying hysterically. Officer Szydlowski testified that Yacheson appeared very frightened of Cameron.
This Court previously determined that a defendant’s “actions sometimes speak louder than words.” Intent may be inferred from all the facts and circumstances. Further, “[a] defendant’s intent may be inferred from his acts.” Because of the inherent difficulty of proving a defendant’s state of mind, only minimal circumstantial evidence from which intent may be inferred need be presented. Therefore, we conclude that the evidence satisfies the elements of assault or an assault and battery under MCL 750.81(2). Cameron’s pushing, punching, or jabbing Yacheson certainly constituted an intentional, unconsented, and harmful or offensive touching. Further, regardless of how the touching started, Cameron clearly intended to commit an intentional touching or place Yacheson in apprehension of an intentional touching. Accordingly, we conclude that the evidence supported an inference that Cameron intended to commit an assault or an assault and battery against Yacheson.
On appeal, Cameron argues that insufficient evidence existed to support the jury’s guilty verdict. However, at trial, Cameron did not testify and did not call any witnesses to contradict the prosecution witnesses’ testimony. The Michigan Supreme Court has long recognized that “[i]t is the province of the jury to determine questions of fact and assess the credibility of witnesses.” In this case, the jury listened to Yacheson’s testimony and found it to be credible. Thus, when viewing the evidence in a light most favorable to the prosecution, a rational jury could find that the elements of a domestic assault had been proven beyond a reasonable doubt. On appeal, Cameron argues that Yacheson invited Cameron over to her apartment, he brought food, he prepared the food, and he began drinking. Cameron claims that at some point, he voluntarily decided to leave Yacheson’s apartment. Cameron also argues that when he returned to the kitchen to retrieve his beer from the freezer, Yacheson slammed the freezer door on his hand. Cameron asserts that he pushed Yacheson out of the way as he exited the apartment. Again, Cameron never elicited this testimony during the trial to rebut the evidence against Cameron. Thus, the jury presumably decided its verdict based on Yacheson’s testimony about the incident. We conclude that sufficient evidence existed to support the jury’s guilty verdict.
IV GREAT WEIGHT OF THE EVIDENCE
A. STANDARD OF REVIEW
Cameron argues that his conviction should be reversed and vacated because the jury’s verdict went against the great weight of the evidence. An appellate court will review a properly preserved great-weight issue by deciding whether “the evidence preponder ates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” However, when a party fails to preserve a great-weight issue for appeal, an appellate court will look for “plain error affecting the defendant’s substantial rights.”
B. LEGAL STANDARDS
An appellate court will only review issues that are properly raised and preserved at trial. The preservation requirement induces litigants “to do what they can in the trial court to prevent error and eliminate its prejudice, or to create a record of the error and its prejudice.” Generally, an issue is not properly preserved unless a party raises the issue before the trial court and the trial court addresses and decides the issue. To preserve a great-weight claim, a party must move for a new trial in the trial court. An appellate court will review a properly preserved great-weight issue by deciding whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.
In this case, Cameron did not move for a new trial, so he failed to preserve the great-weight issue for appellate review. Therefore, we can only review Cameron’s great-weight argument for plain error affecting his substantial rights. Any plain error that affects a party’s substantial rights may be considered even though it was not brought to the court’s attention. A constitutional right “may be forfeited by a party’s failure to timely assert that right.” To avoid forfeiture, the defendant bears the burden to show that (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error prejudiced substantial rights, i.e., the error affected the outcome of the lower court proceedings. Further,
once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error ..." ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings’ independent of the defendant’s innocence. ”[ ]
C. APPLYING THE STANDARDS
As previously stated, testimony of the prosecution witnesses provided evidence of a domestic assault or assault and battery. At trial, Yacheson testified that Cameron pushed her and punched or jabbed her in the stomach. Additionally, Officer Szydlowski testified that she observed Yacheson crying hysterically and that Yacheson appeared to be very frightened of Cameron. The prosecutor argues that this testimony supports an inference that Cameron intentionally committed an assault or assault and battery against Yacheson and that sufficient evidence exists to allow a rational jury to find that the elements of a domestic assault had been proven beyond a reasonable doubt.
In contrast, Cameron did not present any witnesses to contradict the prosecution’s evidence. The jury heard all of the testimony, the jury deliberated, and then the jury found Cameron guilty of domestic violence. Now, on appeal, Cameron argues that his conviction should be reversed and vacated because the evidence presented at trial does not support a guilty verdict. Cameron claims that Yacheson invited him over to her apartment, he brought food, he prepared the food, and he began drinking. Cameron further states that at some point, he voluntarily decided to leave Yacheson’s apartment and that he returned to the kitchen to retrieve his beer from the freezer. Cameron alleges that Yacheson slammed the freezer door on his hand and then he pushed Yacheson out of the way as he exited the apartment.
Despite his assertions to the contrary, we believe that Cameron has failed to show that an error occurred, that the error was clear and obvious, or that plain error prejudiced his rights by affecting the outcome of the trial. Further, to the extent that Cameron argues that Yacheson’s statements to the police were inconsistent with her testimony at trial, “[c]onflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial.” We conclude that the evidence supported the jury’s finding that Cameron intentionally committed an assault or assault and bat tery against Yacheson and that the jury’s verdict was not against the great weight of the evidence.
v CONCLUSION
The trial court did not abuse its discretion when it allowed evidence of Cameron’s prior bad acts to be introduced at trial under MCL 768.27b. Further, when viewing the evidence in a light most favorable to the prosecution, a rational jury could find that the elements of a domestic assault had been proven beyond a reasonable doubt. Thus, sufficient evidence existed to support a jury’s guilty verdict. In addition, Cameron failed to preserve his great-weight argument for appeal, and Cameron has failed to show that a plain error occurred at trial. Accordingly, the jury’s verdict was not against the great weight of the evidence or manifestly unjust.
We affirm.
See MCL 750.81(4).
See MCL 769.10.
At the time of trial, Officer Scher was unavailable to testify, so a redacted version of his preliminary examination testimony was read into the record without objection.
The prosecution, filed a pretrial notice of intent to present evidence of the victim’s statements under MCL 768.27c.
Before trial, the prosecutor had dismissed additional charges of malicious destruction of police property, MCL 750.377b, and illegal entry, MCL 750.115.
Cameron was released on bond at the time of the instant offense. In fact, on the same day Cameron was arraigned in this case, he was sentenced in Oakland Circuit Court Case No. 2008-221126-FH to one to two years in prison for interfering with electronic communications and one year for domestic violence (second offense). Those offenses involved the same victim as this case. Cameron committed the offense in this case while awaiting sentencing in the earlier case.
People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002).
Id.
Id.; People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888 (2000).
MCL 768.27b(5)(a)(i) and (ii) define “domestic violence” as, inter alia, “[clausing or attempting to cause physical or mental harm to a family or household member,” or “[pllacing a family or household member in fear of physical or mental harm.” Further, MCL 768.27b(5)(b)(iv) defines “family or household member” as any “individual with whom the person has or has had a dating relationship.”
People v Pattison, 276 Mich App 613, 615; 741 NW2d 558 (2007); see also People v Schultz, 278 Mich App 776, 778; 754 NW2d 925 (2008) (noting that, unlike MRE 404(b)(1), MCL 768.27b only requires a showing of “the transparency of a person’s character as justification for admitting evidence”).
MCL 768.27a.
Pattison, 276 Mich App at 620 (noting that legislatively enacted MCL 768.27a alters the court-created MRE 404(b)(1) rule of admissibility for other crimes or wrongs, but it does not violate separation of powers because it is substantive in nature); see also Shultz, 278 Mich App at 778-779.
MCL 768.27a(1) provides that “in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may he considered for its bearing on any matter to which it is relevant.”
Pattison, 276 Mich App at 620.
As noted in the information filed by the prosecution, Cameron was initially charged under MCL 750.81(2), but his charge was enhanced to MCL 750.81(4) because this incident was his third offense.
People v Fisher, 449 Mich 441, 452; 537 NW2d 577 (1995).
Id. at 452, quoting People v Goree, 132 Mich App 693, 702-703; 349 NW2d 220 (1984); see also People v Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995) (noting that “[a] party’s case is always damaged by evidence that the facts are contrary to his contentions, but that cannot be grounds for exclusion”).
People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998).
Fisher, 449 Mich at 452.
See People v Starr, 457 Mich 490, 503; 577 NW2d 673 (1998).
People v Hampton, 407 Mich 354, 367; 285 NW2d 284 (1979) (Coleman, C.J.).
Relevant evidence is any fact that is of consequence to the determination of the action. People v McKinney, 410 Mich 413, 419; 301 NW2d 824 (1981).
As noted in the information filed by the prosecution, Cameron was initially charged under MCL 750.81(2), but his charge was enhanced to MCL 750.81(4) because this incident was his third offense. The language of MCL 750.81(2) and MCL 750.81(4) is almost identical except that MCL 750.81(4) makes the domestic assault a felony punishable by imprisonment for not more than two years or a fine of not more than $2,500.
People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000).
Id. at 400.
See MCL 750.81(4); CJI2d 17.2a.
In addition, Yacheson’s testimony at preliminary hearing established that she and Cameron had an on-and-off dating relationship.
People v Starks, 473 Mich 227, 234; 701 NW2d 136 (2005) (citations omitted); CJI2d 17.2a(2).
People v Terry, 217 Mich App 660, 663; 553 NW2d 23 (1996); CJI2d 17.15.
Starks, 473 Mich at 234; CJI2d 17.2a(2).
Tinkler v Richter, 295 Mich 396, 401; 295 NW 201 (1940) (citation and quotation marks omitted); Terry, 217 Mich App at 663.
People v Strong, 143 Mich App 442, 452; 372 NW2d 335 (1985) (citations and quotation marks omitted).
People v Hawkins, 245 Mich App 439, 458; 628 NW2d 105 (2001); Strong, 143 Mich App at 452.
People v Ng, 156 Mich App 779, 785; 402 NW2d 500 (1986).
Strong, 143 Mich App at 452; People v Bowers, 136 Mich App 284, 297; 356 NW2d 618 (1984).
People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998).
Nowack, 462 Mich at 399-400.
People v Musser, 259 Mich App 215, 218-219; 673 NW2d 800 (2003) (citations omitted).
Id. at 218.
People v Stanaway, 446 Mich 643, 694; 521 NW2d 557 (1994); Mich Ed Ass’n v Secretary of State, 280 Mich App 477, 488; 761 NW2d 234 (2008).
People v Mayfield, 221 Mich App 656, 660; 562 NW2d 272 (1997); see also People v Pipes, 475 Mich 267, 277; 715 NW2d 290 (2006).
Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008); People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994); People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007); Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005).
People v Buck, 197 Mich App 404, 416; 496 NW2d 321 (1992).
Lemmon, 456 Mich at 642.
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999), quoting FR Crim P 52(b).
Carines, 460 Mich at 763, citing United States v Olano, 507 US 725, 731; 113 S Ct 1770; 123 L Ed 2d 508 (1993).
Carines, 460 Mich at 763.
Id., quoting Olano, 507 US at 736-737 (second alteration in Carines).
Musser, 259 Mich App at 219, quoting Lemmon, 456 Mich at 647. | [
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Kelly, J.
Plaintiff Ollie Mae Smith was injured on July 11, 1963, when an automobile owned by defendant Heriberto Miranda, and driven by named defendant Lonis Jones, struck the front porch of plaintiffs’ residence where Ollie Mae Smith had been seated, causing a piece of wood to strike her on the leg.
Plaintiffs filed complaint against both Miranda and Jones seeking damages for injuries, pain and suffering, impairment of earning capacity, and the medical expense for care and treatment of Ollie Mae incurred by her husband, Ollie Z. Smith. Jones was never served with process.
A jury returned verdicts against defendant, Miranda, awarding Ollie Mae Smith $2,500, and her husband, Ollie Z. Smith, $719.85 for expense incurred in the care and treatment of his wife.
Judgments were entered on the verdicts and the trial court file discloses payments thereof to the Kent county clerk, who is holding same in escrow pending final determination of the case.
Plantiffs did not file a motion for new trial and appealed to the Court of Appeals.
The Court of Appeals, affirming the trial court, stated (p 94):
“Plaintiffs appeal and assert a multitude of- errors, some of which would clearly require reversal if the jury verdicts had not been in plaintiffs’- favor. However, plaintiffs recovered and they made no claim below nor do they claim here that the verdicts were inadequate or against the weight of the evidence. No motion for new trial on the basis of inadequacy was made in the trial court. Since the errors complained of would only be prejudicial with respect to the amount of the verdicts, we believe Davis v. Jermstad (1957), 350 Mich 439, is disposi-tive of this appeal and we decline further comment on the errors asserted by plaintiffs.”
Plaintiffs sought in the Court of Appeals and are presently seeking a decision reversing the trial court’s instruction on damages. Davis v. Jermstad, supra, is not “dispositive of this appeal.” In Davis. we held that (p 444) “the charge as given to the jury carefully and fully covered the material issues in the case.”
In Bunda v. Hardwick (1965), 376 Mich 640, 672, we held that a motion for new trial was not necessary to preserve for appellate review alleged errors ruled upon by the trial judge.
We will consider in this appeal two claimed instructional errors, both of which were extensively discussed and argued in the “Proceedings In Chambers” by plaintiffs and defendant Miranda, namely:
(1) Was error committed by the trial court’s refusal to permit the jury to consider the gross negligence of defendant Miranda and an award of exemplary damages to plaintiffs; and
(2) Did the trial court err in permitting the jury to consider and determine issues upon which no evidence was submitted.
1.
Plaintiffs call attention that:
“Both the unserved defendant, Jones, and Miranda were charged with wanton misconduct. The charge against Jones was based upon his manner of operating the Miranda vehicle immediately prior to and at the time of this collision. The charge against Miranda was based upon his knowingly permitting an intoxicated person to operate his automobile.”
Plaintiffs analyze our decisions of the past by stating that “at first blush, it might appear” that our decisions before 1948 would sustain the trial court’s refusal to. permit the jury to consider exemplary damages, but that our decisions subsequent to 1948 establish the Court’s error.
The Peyton v. Delnay and Karney v. Upton Cases, upon which plaintiffs rely, involved actions under the guest portion of the statute and not under the ownership liability provisions involved in this appeal.
In the Peyton Case, defendant claimed that if the driver was guilty of gross negligence, then under our Wiecsoreh and Geib decisions the owner would not be liable under CLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101), holding that only ordinary negligence would be imputed to the owner.
.This Court, in rejecting plaintiff’s claim, and explaining the difference between the Wiecsoreh and Geib Cases and the Peyton Case, said (p 248):
“Appellants rely for a contrary view upon Wieczorek v. Merskin, 308 Mich 145; and Geib v. Slater, 320 Mich 316. Neither was a case involving suit by a guest passenger. Neither held that where the operator (driving with the owner’s consent) was found guilty of gross negligence or wilful and wanton misconduct that this acted to relieve the owner of liability.”
That the Karney v. Upton decision did not overrule' Wieczorek or Geib is evidenced by the following from that decision (p‘ 265) :
“It may be noted that the recent decision of this Court in Peyton v. Delnay, 348 Mich 238, is squarely in point. See, also, Wieczorek v. Merskin, 308 Mich 145.”
. Under our decisions of the past, which we are reaffirming in the present appeal, we hold that the trial court did not commit error in refusing to instruct on gross negligence and exemplary damages.
2.
We next consider the court’s instructions regarding plaintiff Ollie Mae Smith’s duty to minimize her damages by obtaining proper medical or surgical treatment. That such a duty exists is well established.
A review of plaintiff Ollie Mae Smith’s efforts to obtain such treatment discloses that within one hour after defendant’s car struck the porch a neighbor drove her to the Grand Rapids Butterworth Hospital Emergency Department, where X-rays were taken which disclosed no broken bones in the leg; that two weeks later because of continuous pain she sought aid from Dr. Jones, of Grand Rapids, who prescribed the use of an elastic bandage to wrap the leg, some pills, and instructions to keep off the leg as much as possible and keep it elevated; that on August 23, 1963, she went from her home in Grand Rapids to the office of Dr. Lauretti, in Muskegon, who diagnosed her complaint as being a thrombophlebitis of the left leg, because either the nerves of the leg were somewhat inflamed or the diameter of the vein was smaller than ordinary; that because Dr. Lauretti felt physiotherapy was necessary, she went to a Mr. Beam, a physiotherapist in Grand Rapids, 19 times between September 4, 1963 and October 16, 1963, where whirlpool treatments and massage were administered; that Dr. Lauretti again examined plaintiff on October 18 and November 19, 1963, and on January 2, 1964; that her next visit to a doctor was on April 2, 1965, to a Dr. Johnston; that Dr. Johnston, on Angnst 23, 1965, operated and tied off a vein in plaintiff’s leg.
Plaintiff was examined as a witness at the trial and on direct examination related her visits to Dr. Lauretti. Plaintiff’s cross-examination was confined to a few questions in regard to a knee injury she received in 1961, and a swollen leg resulting from medical treatment in 1958. Nothing was said by plaintiff on direct examination that even implied that Dr. Lauretti had recommended surgery, and the only question about Dr. Lauretti which defendant asked her on cross-examination was whether her attorney told her “to see Dr. Lauretti in the fall of 1963 so you made two or three trips over there” to Muskegon.
In the opening statement to the jury, defense counsel stated:
“It is our claim and our theory that she knew she needed the operation as of January, 1964, and if it had been done at that time she would have been completely cured at least within a couple of months.”
An extended discussion and argument between counsel took place in the judge’s chambers previous to instructing the jury. It was plaintiffs’ counsel’s contention that there was no testimony that Dr. Lauretti ever advised plaintiff, or her counsel, that surgery was necessary.
The court read aloud to counsel from Dr. Lau-retti’s deposition as follows:
“Q. Does it respond readily to conservative treatment?
“A. If it doesn’t — sometimes it does. But most often it doesn’t. And if it doesn’t then you have to think of other things.
“Q. Such as what?
“A. Surgery.”
and then asked defendant’s counsel,
“Do you claim that that [surgery] was-conveyed to her?”
Defendant’s counsel answered:
' “No, but I claim the law is, if she feels, if the jury finds she failed to procure necessary treatment for whatever reason, if she failed to act as a reasonably prudent person, failed to procure medical treatment and the jury so finds, she cannot recover.”
The court specifically charged the jury:
“In his deposition, the doctor from Muskegon [Dr. Lauretti] then recommended surgery. Whether that was communicated to the plaintiff or not is part of that deposition that was read to you.”
The record sustains plaintiffs’ contention that:
“Upon examination of the record, it is evident that there was no reference at all made to any knowledge on the part of Mrs. Smith that she should have sur7 gery, nor of any opinion being expressed by Dr. Lauretti that she should have had surgery prior to the actual date of surgery. The most that is found in the record is a statement in Dr. Lauretti’s deposition that was read into evidence at the trial, wherein he said upon cross-examination by Mr. Souter [defendant’s attorney] : •
“ ‘Q. So that the next recommendation at that point would normally be surgery?
‘“A. Yes.’
“This is not a statement by Dr. Lauretti that, at the time he last saw Mrs. Smith in January of 1964, he recommended surgery. It is merely an answer to Mr. Souter’s question that ordinarily at the point to which Mrs. Smith’s case had progressed, he would recommend surgery. The trial record is totally devoid of any indication that Dr. Lauretti ever made any recommendation of surgery, or, in fact, that Mrs. Smith ever had any idea that surgery might be required prior to the initial examination by Dr. William L, Johnston.”
" We do not agree with defendant that “The jury might infer that the doctor had recommended surgery to plaintiff and she did not want it,” nor do we agree with defendant’s conclusion that: “Even if there were no evidence at all on the point, which is strenuously denied, then an intelligent jury would not make an erroneous finding on the point anyway.”
■ Hospital records were introduced disclosing that five years before the accident here involved, plaintiff Ollie Mae Smith was hospitalized with chest pains of pleuritic nature and that on discharge (July 8, 1958) the summary sheet stated: “Final diagnosis atypical pneumonia. Thrombophlebitis.” Further, that on June 12, 1961, plaintiff again came to the hospital complaining of her left knee which had. been injured two weeks earlier in an automobile accident. In this regard plaintiff testified her left knee hit the dashboard of the car in which she was riding at the time of that accident.
The only medical testimony was given by Dr. Lauretti and Dr. Johnston.
The questions asked Dr. Lauretti on cross-examination in regard to either of the above mentioned hospital recorded incidents were confined to the following :
“Q. Would the fact that she had had, assuming that there had been a diagnosis of, a diagnosis of thrombophlebitis in 1958, would this be significant to you at all?
“A. I don’t know that it would, because an accident the way she described, causing pain and swelling, at least I would think along the lines of an aggravation.
“Q. You mean that there had been a condition that this may have aggravated?
■ “A. Yes.”
■On direct examination, Dr. Johnston, after stating he had reviewed the above mentioned hospital records, and that those records disclosed there was no further finding of any thrombophlebitis after 1958, was asked whether he attached any significance to the 1958 thrombophlebitis with respect to the present case. He answered:
■ “Well, what I found at surgery certainly could have initiated with her initial injury. I have no way of evaluating what she had in 1958 but the fact that she went from 1958 until 1963 without any swelling, pain, cramps or any other diagnosis in the innumerable hospitalizations and innumerable clinic visits is pretty conclusive that this process she had in 1958 had subsided completely. It must have been a localized process, it did not ascend up her leg or give her enough scarring to produce this picture.”
On cross-examination of Dr. Johnston, the following questions were asked and answers given:
“Q. Well, assuming she had the phlebitis that the hospital records show in 1958, do you mean that this would have completely cleared or disappeared?
• “A. Yes. * * *
' “Q. Do you feel that 1958 phlebitis was not significant then?
“A. I don’t think it has any relationship to this [case]
The court in its instructions to the jury in regard to defendant’s claim, said:
“It is the claim of the defendant that what injuries Mrs. Smith complained of were not caused by this piece of wood coming in contact with her leg.
“It is the further claim of the defendant that she had a thrombus condition, thrombophlebitis condition back in 1958; that she was in an automobile accident in 1961 and that her thrombosis or thrombophlebitis was not the direct result of any negligence on the part of either Mr. Jones or Mr. Miranda.”
Further on in the instructions, the court stated, and again reiterated that the jury could find that plaintiff was not entitled to any damages even though the evidence proved defendant’s negligence.
The only evidence introduced other than that of the doctors, that could in any way throw any light upon the question as to whether plaintiff’s operation was caused by the act of defendant or because of her condition previous to said act, was the testimony of the plaintiff Ollie Mae Smith, which refuted defendant’s claim.
“An instruction not based on the evidence is erroneous in that it introduces before the jury facts not presented thereby, and is well calculated to induce them to suppose that such state of facts in the opinion of the court is possible under the evidence and may be considered by them.” 53 Am Jur, Trial, § 579, pp 455, 456.
In Fortner v. Koch (1935), 272 Mich 273, 283, we held that it is impossible to determine the.effect upon the minds of the jury resulting from an instruction erroneously assuming the existence of certain facts.
We have also held that if the error is such that the result might well have been different if not committed, a new trial is justified. Rouse v. Gross (1959), 357 Mich 475, 481,482.
Applying these above mentioned tests, we con: elude that a new trial should be granted because of instructions which permitted the jury to consider and determine issues upon which no evidence was submitted.
Reversed and remanded for new trial. Costs to appellants.
ADDENDUM
This addition to my opinion is written subsequent to receiving Justice Adams’ and Justice Black’s opinions.
The common-law liability of defendant Miranda was not considered in my original opinion because it was not raised in either the trial of this case or in the appeal to the Court of Appeals.
Plaintiffs, in their brief, admit that even though the evidence would sustain an instruction in regard to “the wanton misconduct of defendant Miranda,” and an instruction in regard to “imputation of the wanton misconduct of defendant Jones to defendant Miranda,” there still would remain the “critical issue” in regard to exemplary damages, by the statement to this Court:
“However, if the Court determines that the question of gross negligence should have been presented to and decided by the jury, then plaintiffs’ entitlement to exemplary damages becomes a critical issue in the case.”
Admitting that if the Court’ approves submitting to the jury the question of exemplary damages, it will be doing so for the first time, plaintiffs state:
“Although there are numerous Michigan cases involving the allowance of exemplary damages under varied fact situations, there are none directly in point with reference to a claim for personal injuries sustained in an automobile collision.”
The cases cited by Justice Adams do not refute this statement.
The common law came into existence and was developed before the day of the automobile. Realizing this, the Michigan legislature has by enactment extensively provided for the “rules of the road” in regard to driving, stopping, and parking. Up to now we have abided by those rules in determining the question of negligence in automobile accident cases and have not placed the burden upon the trial court or jury to first determine whether there was proof of negligence and then determine the amount or kind of negligence except in guest passenger eases. Determining the question of the amount of negligence is a major problem which has been proven by the guest passenger cases that have been appealed to this Court.
The only legislative reference to gross negligence or wilful and wanton misconduct is in the guest passenger statute and this provision was not included for the purpose of giving to the injured guest an added right to exemplary damages, but was inserted in a restrictive sense, namely: that no guest passenger could recover damages unless there was proof of gross negligence or wilful and wanton misconduct.
Nothing has been presented since my original writing that causes me to conclude differently than I did then, i.e.:
“Under our decisions of the past, which we are reaffirming in the present appeal, we hold that the trial court did not commit error in refusing to instruct on gross negligence and exemplary damages.”
T. E. Brennan, C. J., and Dethmers, J., concurred with. Kelly, J.
Smith v. Jones (1967), 6 Mich App 92.
Wieczorek v. Merskin (1944), 308 Mich 145; Geib v. Slater (1948), 320 Mich 316.
Peyton v. Delnay (1957), 348 Mich 238; and Karney v. Upton (1958), 353 Mich 262.
48 ALR2d 346, 349, 350; Poikanen v. Thomas Furnace Co. (1924), 226 Mich 614; Kricinovich v. American Car & Foundry Co. (1916), 192 Mich 687.
“If you should find that her injuries were the result of her condition in 1963, was the result of what happened in 1958 or 1961, and what happened in July 1963 had nothing to do with her condition of course then she cannot recover the damages that I have outlined to you, because, this defendant would be liable for only the direct results or responsible for the damages that are directly traceable to the aeeident that happened on July 11, 1963.”
“But, if you should find that her condition in July and subsequent months was a direct eause or relate back to what happened in 1958 and 1961 then of course they were not the direet result of this accident on July 11, 1963. * * *
“If on the other hand you find these injuries that she complained of, were not caused by, — were not directly caused by the negligence of Mr. Jones, if any, and that was solely due to her condition in 1958 or 1961, of course then her resulting injuries and damages were not a direct cause of this accident and she cannot recover,” | [
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Black, J.
(for reversal). As this originally simple and altogether local proceeding came to appellate decision (9 Mich App 342), both its nature and issue as framed, tried and decided in circuit were subjected errantly to the influence of Federal law attending a conjectured but quite nonexistent Federal question. Now, and until this Court restores to its pristine posture what in the Court of Appeals became a curiously new-blown Federal case, no thought of affirmance may be entertained without offense to yet another constitutional right, that of a respondent charged with and convicted of contempt of a Michigan court to have his conviction reviewed without the application ex post facto of the rule of a Federal decision which, aside from its irrelation to such a proceeding, was handed down some 15 months after that respondent’s conviction was adjudged in circuit and he had timely claimed right of appeal.
• Here we review for error no criminal prosecution. No defendant charged with or convicted of crime stood before either of the courts below. None stands here. No Federal constitutional right, advanced on behalf either of the accusing judge or the respondent attorney, is at stake. The rights of no accused person or of any convict are called into play by him, or on his behalf. Our forthcoming judgment -will determine no issue arising under the Constitution ¡of the United States, or under any act of Congress, 'or treaties made, with respect to which the Supreme Court is given supreme interpretive authority by US Const, art 6. That judgment will simply determine whether, upon a record made in a circuit court of Michigan, before a circuit judge of Michigan, a member of the Michigan bar was properly judged— mider Michigan law^ — guilty of contempt of that same court of Michigan,
These beginning postulates suggest that the proceeding under review should be ordered from exalted heights down to the comparatively pastoral legal environment of Allegan county. There the accusing judge, all credit to him, undertook only to determine whether the respondent attorney was, by the gauge of exclusively applicable Michigan law, guilty of contempt of one of our circuit courts for 1 simply assigned reason, reflected this way in the judgment entered in circuit and brought now to review:
“1. That on May 27, 1965, an order was made by this court appointing Leo W. Hoffman, a duly licensed attorney at law, appellate counsel in the matter of The People of the State of Michigan v. Ernest B. Sandefur, criminal file No. 4068, Allegan county circuit court.
“2. That the said Leo ~W. Hoffman, well knowing the terms of the said order, did, in a report filed in this court, refuse to prepare and file an appeal for the said Ernest B. Sandefur, giving as his reason therefor, that he was unable, after careful examination, to find any ground for an appeal.
“3. That such refusal to prepare and file an appeal as guaranteed by the Constitution of the State of Michigan 1963, particularly article 1, § 20, and GrCB, 1963, 785, constitutes a violation of a valid order of this court, and that a refusal to proceed as directed constitutes contempt of this court.”
Like all judges of the courts of the States, Judge Smith knew naught then of Anders v. California (May 8, 1967), 386 US 738 (87 S Ct 1396, 18 L Ed 2d 493). That case had not as yet been Federally conceived. The conception did not take place until certiorari was granted April 4, 1966, 383 US 966 (86 S Ct 1278, 16 L Ed 2d 307).
First: Judged exclusively by the record made by and before Judge Smith, was the respondent contemptuous¶
By way of purposeful preamble the indorsers of this opinion approach consideration of the recorded facts exactly as they were developed by and made to appear before Judge Smith between June of 1962 and February of 1966, uncolored by any subsequently written judicial opinion. Declared another way, we consider the record as if this Court stood judicially in Judge Smith’s shoes on and prior to February of 1966, with no opinion of Anders v. California and no opinion of Mr. Hoffman’s appeal to the Court of Appeals known to us, and with no issue framed and submitted for decision save that which the judge decided per quotation above. As we perceive, this is the sure way to avoid the after-witted error of applying a respectable yet elective Federal intervenient to a not very difficult question of local law.
In June of 1962 one Ernest B. Sandefur was charged in Allegan county with first-degree murder. John B. Nahan, a reputable member of the Allegan county bar, was promptly engaged to represent him. Upon Mr. Nahan’s advice the defendant stood mute. A plea of not guilty was entered. Two months later the defendant appeared with counsel before the court. The following record was made:
“Mr. Andrews [prosecuting attorney] : May it please the court, this is the matter of the People of the State of Michigan v. Ernest B. Sandefur, File No 4068. Mr. Sandefur was before the court on the 20th day of June, 1962, with his counsel, Mr. Nahan, of the city of Allegan, and stood mute on a charge of homicide which had been filed on the 5th day of June. My understanding is Mr. Sandefur has further consulted with his counsel, Mr. Nahan, and wishes to inform the court that there is a change in the plea in this matter. Is that right, Mr. Nahan?
“Mr. Nahan: Yes, sir. I advised Mr. Sandefur and he has agreed to change his plea from mute to a plea of guilty to the general charge of homicide, with the request that the court allow respondent to offer evidence as to the degree of homicide, and then after hearing such evidence determine the degree.
“The Court: Is that your wish, Mr. Sandefur?
“The Respondent: Yes, sir, it is okay with me, sir.
“The Court: Mr. Nahan has been your attorney for the last 2 months or so?
“The Respondent: Yes.
“The Court: His services have been satisfactory?
“The Respondent: Satisfactory to me, sir, fine.
“The Court: Plea of not guilty heretofore entered by the court may be withdrawn, plea of guilty to the open charge of homicide will be accepted by the court. There will be no bond. Mr. Nahan and the court has discussed the matter of trial date to determine degree of guilt in this matter and he has suggested a month from today. Is that satisfactory to you, Mr. Andrews?
“Mr. Andrews: Satisfactory to the people, yes, your Honor.
“The Court: That is the 20th day of September, 9 o’clock.
“Mr. Andrews: I would be perfectly willing to make available to counsel my files in the matter so we might expedite this hearing.
“The Court: That will be appreciated.
“Mr. Nahan: Thank you, your Honor.”
A little over a month, later the court conducted an unusually thorough hearing to determine the degree of guilt. It is unnecessary that the hearing be rehashed here beyond comment that the court and all counsel left no legal stone unturned, no known witness unsworn, no argument for a reduction of degree left silent. The result, certified to us by Judge Smith, was this:
“On October 9, 1962, the court found:
“ ‘The court finds there is an absence of that degree of premeditation which would characterize the act as murder in the first degree and, likewise, an absence of such provocation or justification that would reduce the homicide to manslaughter.
“ ‘We have here a killing done in anger with sufficient time for a cooling off with no justification for self-defense, and in the opinion of the court, those circumstances dictate a finding of murder in the second degree and the court so finds.’
“The court then asked the respondent, Ernest Sandefur, if he knew of any reason why the court could not lawfully pass judgment, and the respondent replied:
“ ‘No, sir.
■ “ ‘The Court: And sentence in your matter today ?
“‘The Respondent: No, sir.
“ ‘The Court: Is there anything you would like to say to the court?
“ ‘The Respondent: I don’t know of anything, sir.
“ ‘The Court: Mr. Nahan?
“ ‘Mr. Nahan: No, sir.
“‘The Court: It is the sentence and judgment of this court that Ernest B. Sandefur be committed to the jurisdiction of the Michigan corrections department and confined at Michigan Southern Prison at Jackson for a period not less than 20 nor more than 40 years. The court recommends the minimum.
“ ‘Mr. Nahan: Your Honor, does such sentence take into consideration the time spent in the Allegan county jail?
“‘The Court: Yes. The court always takes that matter in consideration.’ ”
It was not claimed then or in the course of post-conviction proceedings (mentioned later) that Mr. Nahan did not act faithfully and competently for the defendant. Indeed, the full record of the statutory proceeding (CL 1948, §750.318 [Stat Ann 1954 Rev § 28.550]), conducted by the court to deter-minethe degree of Mr. Sandefur’s guilt, shows that Mr. Nahan went to uncommon lengths in effort to reduce the charge against Mr. Sandefur to voluntary manslaughter; a goal insurmountable in view of eyewitness proof that Mr. Sandefur, having shot at and wounded his son in the home, pursued the fleeing son down the street, meanwhile firing his Colt .45 three times more with fatal effect. Mr. Nahan’s uphill work did at least accomplish for Mr. Sandefur a conviction of second-degree rather than first-degree murder, along with recommendation of the minimal term of sentence as fixed by the court, that is, 20 years.
In May of 1965 Mr. Sandefur wrote to “the Allegan county circuit court,” alleging indigency and requesting:
“Will you please appoint me an attorney, I want to appeal my case, and furnish all records and transcript at public expense.”
May 27, 1965 the court appointed the respondent Hoffman “appellate counsel for the defendant.” The order of appointment concluded:
“It is further ordered that such portion of the trial transcript as shall be requested by counsel for post-conviction motions and the perfection of an appeal be furnished to said counsel.”
Having obtained the necessary transcripts and having completed what to him was requisite to performance of his appointive duty, Mr. Hoffman reported to the court under date of September 24, 1965 that he could find no reason or ground “to file for new trial” or attempt an appeal on behalf of Mr. Sandefur. His report consists of 3 printed pages. Save for deletion by asterisks of a long paragraph which includes the oath required by our July 17, 1964 amendment of section 3 of State Bar Rule 16 (373 Mich cxxviii-cxxxi), the report appears verbatim in Justice T. M. Kavanagh’s opinion and will not be repeated here. We find that report, supported as it was by Mr. Hoffman’s undisputed testimony given in response to Judge Smith’s order to show cause, amply sufficient to meet and overcome any thought that Mr. Hoffman’s refusal to proceed was either contemptuous or technically indicative of contempt. The report and the testimony exhibit assiduous care on the part of an able and experienced trial and appellate lawyer in undertaking to search a complete record — of arraignment, appointment of counsel, plea, and statutory proceeding which included the taking of the defendant’s testimony along with that of others — for some reasonable or even “arguable” possibility of error. The report was right, factually and legally. It justifies our now declared ruling that Mr. Hoffman, declining to proceed further, relied properly upon the canonically ordered duties of members of the Michigan Bar.
A s against all this it is not out of order to observe that even one of these brilliantly imaginative law professors moderne — strengthened say like Samson with Dundreary whiskers and curls of Custer— would be hard put to strain out of Mr. Sandefur’s 1962 court record something other than plain nonsense for review on his behalf. Of that we own to some knowledge born of experience, to which we come now.
The soundness of Mr. Hoffman’s reported appraisal of the Sandefur record was confirmed by Judge Smith at the time. It was tested thereafter by the Court of Appeals and then by this Court.
A week after having received Mr. Hoffman’s report Judge Smith appointed another eminent (and this time obediently willing) member of the Allegan county bar, to act as substituted counsel in the place and stead of Mr. Hoffman. . Such new counsel promptly prepared and submitted to the Court of Appeals an application on behalf of Mr. Sandefur for leave to take a delayed appeal. We need not relate the valiant if useless content thereof. It was denied unanimously by order entered March 8, 1966. The order reads:
“In this cause an application for delayed appeal is filed by defendant, and nothing in opposition thereto having been filed, and due consideration thereof having been had by the Court;
“It is ordered that the application for delayed appeal be, and the same is hereby denied for the reason that a meritorious basis for an appeal is not established.”
An application to this Court for leave to review the quoted order of denial was denied by unanimous order entered June 14, 1966. That order reads:
“On order of the Court, the application for delayed leave to appeal is considered, and the same is denied, for the reasons that defendant-appellant has failed to persuade the Court that he has a meritorious basis for appeal or that the decision of the Court of Appeals was clearly erroneous.”
A second application by Mr. Sandefur, alleging applicability to his 1962 confession and conviction of Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694), Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 L Ed 2d 882), and Davis v. North Carolina (1966), 384 US 737 (86 S Ct 1761, 16 L Ed 2d 895), all handed down in 1966, was denied here September 6, 1967 by order reading:
“On order of the Court, the application for leave to appeal is considered, and the same is denied, for the reasons that no sufficient justification or meritorious basis is presented and further because a previous application was denied by order of this Court on June 14, 1966.”
There is reversible error here, committed successively by the retroaction of backward bent judges. Judge Smith erred in planting his judgment of contempt upon view that new section 20 of article 1 of the Constitution of 1963, granting appeal as of right “in every criminal prosecution,” became applicable nunc pro tunc to the 1962 judgment of conviction and sentence of Mr. Sandefur. Division 3 erred in backtracking Anders two years to justify a judgment of conviction of contempt for having done that which, when performed, was lawful. And Division 3 erred in failing to perceive that the practice pursued by Judge Smith, when the judge substituted promptly the willing Mr. Tooman for the unwilling Mr. Hoffman, provided Mr. Sandefur with service — appellatewise—surpassing that which the Supreme Court later called down upon California on behalf of Mr. Anders. ■
On petition for certiorari, filed by the indigent and imprisoned Mr. Anders, the Supreme Court (not exactly quiescent or unanimous) criticized California’s method of providing appellate service and laid down for California and States providing similar appellate procedure a new rule; in particular one which exacts of appointed appellate counsel a request for permission to withdraw and “a brief referring to anything in the record that might arguably support the appeal.” Then the rule calls upon the court to make a determination that “the case is [or is not] wholly frivolous.”
As against that rule and for the nonce we prefer our eminently superior practice; that of appointing for an indigent appellant willing or disposed counsel as done by Judge Smith. It provides for such an appellant a lawyer more likely to serve better than would the lawyer forced against his will to act for' a cause lie knows, and the trial judge knows, is ■frivolous. And, unlike Anders, it certainly assures this in the appellate court; that the indigent appellant is represented there no matter the fatuity of the presented issues and arguments presented thereon.
Second: Was respondent guilty of contempt for failure to move for leave to withdrawf
Division 3 repeated what became on appeal a new charge against the respondent; that he did not ask leave of Judge Smith to withdraw from representation of Mr. Sandefur (9 Mich App at 344, 346). This is a question no one raised in circuit and is simply more afterwisdom acquired of Anders. Not having been charged against Mr. Hoffman, in circuit, as a contemptuous act or omission, the allegation was not reviewable by Division 3 and is not before this Court now. "We take it up nonetheless since the response in any event must be the same.
Judge Smith did not require or call upon Mr. Hoffman for a motion for leave to withdraw. The judge instead appointed substitute counsel and did so some weeks prior to instituting this proceeding by order to show cause. His first order effected a proper substitution of counsel, obviated need for presentation and consideration of a motion for leave to withdraw, released the respondent Hoffman from further duty as previously appointed counsel, and provided as we have seen expeditious if vain appellate proceedings on behalf of Mr. Sandefur.
It is not open to question, this whole record considered, that Judge Smith wanted to pose and decide for appellate review just one issue, that is, duty of appointed counsel to appeal on grounds assigned by the indigent defendant no matter the sophistry or frivolity thereof. The judge’s opinions, quoted infra, make that clear. So do the introductory paragraphs of his opinion finding Mr. Hoffman guilty of contempt:
“The circuit court for the county of Allegan, on its own motion, required Leo W. Hoffman, a duly licensed attorney at law, to appear before the court to show cause why he should not be adjudged guilty of contempt for failure to take the necessary legal steps to bring the matter of the People v. Ernest B. Sandefur, No. 4068, Allegan county circuit court, before the Michigan Court of Appeals.
“Ernest B. Sandefur had been adjudged guilty of second-degree murder by this court and sentenced to a term in prison. After a lapse of several years, Sandefur petitioned the court for legal counsel to enable him to have his case reviewed. On May 27, 1965, the court appointed Mr. Hoffman to represent Sandefur pursuant to GCR 1963, 785, and article 1, § 20, Michigan Constitution 1963.
“Thereafter Mr. Hoffman reviewed the file and record in the Sandefur case and reported to the court in writing his professional opinion that Mr. Sandefur had no just grounds on which to appeal. Mr. Hoffman’s report to the court contained a refusal to proceed to take the necessary steps for an appeal. Thereupon the court appointed substitute counsel to represent Sandefur.”
To Summarise:
1. Refer back to the introductory paragraphs of this opinion. They show that local law is properly determinative of the issue made in circuit. They show also the inapposite character of each of the case's Justice T. M. Kavanagh has cited under heading “We are not without a pragmatic guide implementing the decision in Anders:” (post 100), in that no one of them challenges or decides the asserted power of a State trial judge to find an attorney guilty of contempt for having refused after appointment to proceed with an indigent’s demand for appeal on grounds which the judge and the attorney both know are frivolous.
2. As for the trial judge’s reference to former and now extinct Buie 785.4(2) (373 Mich xvi, xvii, xviii), it need only be said that that rule merely required the appointment of counsel for indigent convicts “to prepare delayed motions for postconviction proceedings in the trial court and to prepare an application for leave to take delayed appeal.” It did not undertake, nor has this Court ever undertaken, to require appointed counsel to proceed on frivolous grounds once those grounds have been ascertained to be such, as in this case.
The judgments of the circuit court and Court of Appeals are reversed. An order acquitting the respondent of contempt, as charged in the circuit court, will enter there.
T. E. Brennan, C. J., and Dethmers and Kelly, JJ., concurred with Black, J.
Justiee Cooley’s consideration and definition of ex post facto laws remains as valuable today as when written. Under the heading of “Ex Post Eacto Laws. — ” (General Principles of Constitu tjonal Law by Thomas M. Cooley [3d ed], by Andrew C. McLaughlin, 1898, page 313) the Justice added inter alia the following to the durable classification of ex post facto laws that was written in Calder v. Bull (1798), 3 US 386, 390 (1 L Ed 648):
“5. Every law which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right for something which when done was lawful.”
The pertinent nature of Michigan contempt proceedings was summarized in the “committee comment,” appearing below RJA 1701 (See Stat Ann 1962 Rev § 27A.1701, p 355). This connected portion is demonstrative:
“The courts originally had difficulty in defining the nature of contempt proceedings. Nearly any definition which it might ehoose ran into limitations to which the eourt did not wish to subject the contempt power. In the ease of In re Smith (1906), 144 Mich 39, the eourt held that contempt proceedings were not actions at law within the reasonable construction of the statute but were instead special summary proceedings entirely independent and distinct from the suit' in which the contempt was committed. In the ease of People v. Yarowsky (1926), 236 Mich 169, the eourt decided that contempt proceedings were not criminal proceedings as they were not intended to punish breaches of the criminal law but were instead designed to maintain the dignity of the eourt. Contempt proceedings were said not to be criminal proceedings but proceedings partaking of a criminal nature and this was further demonstrated by the fact that the right to punish contempts is not limited to the criminal eourts but may. bo exercised by a court sitting" in a purely civil capacity.”
CL 1948, § 612.1 (Stat Ann § 27.653), and GCR 1963, 201.1, Rave specifically provided for upwards of 50 years that the party who commences an action shall be designated as plaintiff and the adverse party as defendant. Such designation is now made applicable to criminal actions by GCR 1963, 785.1. The “respondent”, here referred to, is Mr. Sandefur. Elsewhere in this opinion the term “respondent” has referred to Mr. Hoffman, the attorney. Justice T. M. Kavanagh refers to “defendant Hoffman.”—Reporter.
The oath thus required includes this paragraph:
“I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense exeept such as I believe to be honestly debatable under the law of the land,”
Judge Smith’s opinion of October 11, 1965, denying Mr. Sandefur’s then pending motion for new trial, stated:
“The court has appointed Leo W. Hoffman, an attorney of the city of Allegan, to represent respondent in his petition for a new trial. Mr. Hoffman has advised the court after reviewing the record he finds no grounds for a new trial or appeal. After being so advised by Mr. Soffman the court reviewed the record and is Wee minded.’’
All presently seated Justices have agreed on this. Judge Smith’s retroactive application of said section 20 appears in his opinion of January 24, 1966 this way:
“But citation of authorities from other jurisdictions and from the canon of ethics simply does not solve the practical problem of implementing the Michigan Constitutional grant of an appeal of right. To that end the Michigan Supreme Court has required the appointment of appellate counsel in GCR 785.
“An appeal as of right requires an appellate court to pass final judgment. Neither the judgment of the trial court or a member of the bar is a proper substitute for appellate review. * * *
“Likewise where conflict exists between an attorney’s obligations under the canons of professional ethics of the American Bar Association and his obligations under the Constitution of his State, the former must yield to the latter.”
Repealed effective June 8, 1967 (379 Mich xxvi, xxx). | [
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Black, J.
This appeal brings up a nationally bruited and quite unsettled question of criminal justice. The source of that question is what vexed lawyers and judges refer to as Miranda and Johnson (Miranda v. Arizona, 384 US 436 [86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974]; and Johnson v. New Jersey, 384 US 719 [86 S Ct 1772, 16 L Ed 2d 882], June 13 and June 20, 1966, respectively). The question, tersely put, is whether the rules laid down 5-3-1 in Miranda apply to this forthcoming retrial of a 1961 trial for and conviction of first-degree murder (CL 1948, § 750.316 [Stat Ann 1954 Rev § 28.548]).
Not being disposed “to attempt to outrun the Supreme Court of the United States” (see Adams, J., in In re Apportionment of State Legislature— 1964, 372 Mich 418, 473) by stretching Miranda beyond what we perceive is the precise command thereof, and having concluded since oral argument that the intervening provisions of presumptively constitutional section 3501 of the crime control act of June 19, 1968 (Public Law 90-351, 90th Congress, HR 5037; 18 USC § 3501, 36 US LW 109) will .bring to the State courts ultimately concordant advices of the Supreme Court, we stand with Judge Newblatt and the assigned panel of the Court of Appeals for a negative answer to the stated question!
Charged with first-degree murder and jury tried June 13 through June 22, 1961, defendant Woods was convicted as charged and sentenced to life imprisonment. Throughout the proceedings resulting in such conviction he was represented by court appointed counsel, the competence and integrity of whom is unquestioned. June 26, 1967, for reasons dissociated entirely from the question of admissibility — on retrial — of defendant’s 1961 confession, an order for new trial entered in circuit. Preparing for new trial, the prosecuting attorney gave notice of intent to prove and introduce the confession. Newly appointed counsel for defendant moved to suppress for want of compliance with the requirements of Miranda. The successor judge denied the motion on ground that Miranda by Johnson’s terms was not intended to apply to any case commenced before Miranda’s decision was announced. The Court of Appeals affirmed May 29, 1968, citing People v. Shaw (1968), 9 Mich App 558.
The subordinate Federal courts and the courts of the States generally are in manifest conflict. For the most recent and thorough discussion thereof see State v. Lewis (1968), 274 NC 438 (164 SE2d 177); People v. Worley (1967), 37 Ill 2d 439 (227 NE2d 746); People v. Sayers (1968), 22 NY2d 571 (293 NYS2d 769, 240 NE2d 540) and “The Applicability of Miranda to Retrials,” 116 U of Pa Law Rev, 316, of which more later along with specific reference to Jenkins v. State (1967), — Del — (230 A2d 262) and Jenkins v. State (1968), — Del — (240 A2d 146).
The Federal decisions furnish little or no reasoning, the respective opinion writers seemingly having taken it for granted that “if this case must he retried, it is clear that Miranda must be applied.” (Quotation from Virgin Islands v. Lovell [CA 3, 1967], 378 F2d 799, 802 n 4), whereas the most persuasively reasoned decisions of the courts of the States hold to the contrary. The author of the University of Pennsylvania Law Review commentary, supra, provides an appropriate introduction to scrutiny in depth (pp 324, 325):
“In the retrial situation, the police face a far more difficult task in attempting to compensate for the inadmissibility of the confession since the trial is further removed in time from the investigation. The unavailability of evidence may necessitate dismissals or acquittals, should Miranda be applied.
“The interest of society here cannot be dismissed easily. It might be argued that by virtue of the establishment of stricter standards in Miranda, the Court has balanced society’s interest in protection and safety against an accused’s constitutional privileges, and has chosen to run the risk that people who have committed crimes will avoid imprisonment. However, in the normal case where Miranda will govern, the police will have had prior notice of the constitutional requirements and will have the opportunity to gather the evidence necessary to convict the guilty. In the retrial situation,, through their justifiable reliance on the admissibility of confessions, the police have foregone the opportunity to gather such evidence and society’s interest cannot be protected. Thus, the Miranda balance does not necessarily control this situation.”
We find that the author’s conclusion is quite in accord both with Johnson and Stovall v. Denno (1967) , 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199). Johnson reads (384 US 719, 733):
“The rules of Miranda were promulgated in order to deter certain police conduct which tended to jeopardize the privileges of the accused. The rules also made explicit what behavior was required of police. It is now too late to deter the behavior of police with regard to the retrial defendant; if the police conduct fell "below the standards announced in Miranda, the dignity of the individual has already suffered. Application of Miranda could prevent this injury from culminating in self-incrimination at trial. However, application of the voluntariness test could at least prevent this in most obvious cases of coercion. Consequently, the circumstances of the retrial situation make the use of the voluntariness test preferable to application of Miranda on retrial.”
“In the light of these additional considerations, we conclude that Escobedo and Miranda should apply only to cases commenced after those decisions were announced.”
Stovall echoed, just a year later (pp 300, 301):
“We also conclude that, for these purposes, no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. We regard the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction unsupportable.”
For the convenience of Michigan judges and attorneys not having at ready hand the reports of Lewis, Worley and Sayers, we quote connectedly and with approval from each. State v. Lewis (1968) , 274 NC 438 (164 SE2d 177, 185, 186):
“Consideration of these overruling decisions leaves the impression the Supreme Court of the United States has not spoken definitively on the precise question now under such consideration. Pending such decision, trial courts in this jurisdiction will be guided by our decision herein.
“In determining judicial policy, the opinion in Stovall states: ‘The criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.’ (Our italics.) Obviously, law enforcement officers relied on the constitutional standards applicable at the time of the search and seizure, and at the time of the confession, and at the time of the lineup. The date the trial or retrial is commenced is unrelated to whether the law enforcement officers obtained the evidence according to constitutional standards upon which they reasonably placed reliance. As stated by Justice Schaefer, of the supreme court of Illinois, in The Control of ‘Sunbursts’ : Techniques of Prospective Overruling [22 Record of NYCBA 394,] 411: ‘The earlier constitutional standards were relied upon, not at the moment that the trial commenced, but at the moment that the interrogation took place.’
“In our view, Miranda should not and does not apply to confessions obtained prior to that decision, when offered at trials or retrials beginning thereafter, where law enforcement officers relied upon and complied with constitutional standards applicable at the time the confessions were made. We perceive a trend towards this conclusion in decisions of the Supreme Court of the United States discussed herein.”
People v. Worley (1967), 37 Ill 2d 439, 446, 447:
“Since the language employed in the statement of the Johnson rule is inconclusive, in our opinion the intention of the court may best be found by examining the reasons for the rule. The court listed three factors which entered into its decision: the purpose for announcing new standards in Miranda, the reliance placed upon the pre-Miranda rules, and the seriously disruptive effect on the administration of justice of a decision that Miranda apply retroactively. Finding that the integrity of the fact-finding process is not as substantially improved by Miranda as it has been by others of its decisions, that the pr e-Miranda rules had been relied on by law enforcement . officers to obtain confessions which are inadmissible in post-Miranda cases, and that making Miranda retroactive would seriously disrupt administration of our criminal laws, the court decided against applying Miranda retroactively. "While the disruptive effect upon our criminal laws would not be as great if we follow Gibson [v. United States (CA 5, 1966), 363 F2d 146] as it would have been if the Supreme Court had held that Miranda applied retroactively, because retrials are not required in all pr e-Miranda decisions in which confessions are involved, the presence of a disrupting effect similar to that with which the Court was concerned in Johnson, as well as a consistent thrust from each of the other two criteria, leads us to conclude that the Supreme Court did not intend that Miranda apply to retrials in eases such as the instant one. The pr e-Miranda and pre-Escobedo rules making inadmissible coerced confessions, as well as Esco-bedo, were available to protect the integrity of the fact-finding process in defendant’s case so that holding Miranda applicable to his retrial would effect no significant improvement therein. Law enforcement officers placed identical reliance on the pre-Miranda rules to obtain confessions in all cases which commenced prior to June 13, 1966, and the fact that a retrial is ordered in some of these eases in no way alters this reliance.
“Our interpretation of the Supreme Court’s intent in Johnson is reinforced by the fact that the Court there made Miranda applicable only to cases commencing subsequent to June 13, 1966, expressly excluding those in which direct appeals were pending at the time Miranda was announced. This was in direct contrast to its action in Linkletter v. Walker, 381 US 618 (85 S Ct 1731, 14 L Ed 2d 601), in which the Court, while declining to apply Mapp v. Ohio, 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081), retroactively, held it applicable to all cases in which the State court decision had not become final prior to announcement of Mapp. Also of some significance is the statement in Johnson (384 US at 732 [86 S Ct at 1780, 16 L Ed 2d at 892]) that ‘Future defendants (emphasis ours) will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test.’ We therefore hold that Miranda is inapplicable to retrials in cases which were originally tried prior to June 13, 1966.”
People v. Sayers (1968), 22 NY2d 571 (293 NYS2d 769, 772, 773, 240 NE2d 540, 542, 543):
“The Supreme Court in a decision which cannot be distinguished from Johnson did not apply the new standards to trials commenced after the date of the new decision but only to those trials in which the lineups had taken place after the decision requiring the presence of counsel. Indeed, the Court indicated that, when the basis of a nonretroactivity decision is the reliance by law enforcement officials on particular decisions of the Court, the crucial test in determining the point at which the new rule was to be applied was the point at which reliance had taken place. The Court cited with favor a lecture given by Mr. Justice Shaefer of the supreme court of Illinois, who was critical of the failure of the Johnson decision to recognize this factor. Mr. Justice Shaefer wrote (in a passage which was included within the citation in Stovall, supra):
“ ‘Again, however, in its determination [in Johnson v. New Jersey, supra] of the cutoff date for the application of new constitutional doctrines, the ■Court overlooked the factor of reliance. A police officer conducting an interrogation prior to Miranda could have complied fully with the then applicable constitutional standards but still have failed to comply with the newly added requirements. The earlier constitutional standards were relied upon, not at the moment that the trial commenced, but at the moment that the interrogation took place. There have been cases¡ and there will be more, in which this distinction is critical.’ (Schaefer, The Control of ‘Sunbursts’: Techniques of Prospective Overruling, 22 Record of Association of Bar of City of NY 394, 411 [emphasis added], cited in Stovall v. Denno, supra, 388 US 293, 301, 87 S Ct 1967, 1972, 18 L Ed 2d 1199, 1206).
“There can be little question, in light of Stovall, that, if Johnson v. New Jersey were decided today, the standards adopted in Miranda v. Arizona would have applied to govern the admissibility of only those confessions obtained after the date of the decision. While we are bound to apply Johnson to situations which the court specifically dealt with, we should not apply it to situations such as this, which were not considered in Johnson.”
' Turning now to previously mentioned section 3501 of the crime control act of June 19, 1968. For the entitlement, declarations of purpose and full text of that section, see the appendix hereof. And for the interpretive background of the act, see Senate Report No 1097, 1968 US Code Congressional and Administrative News, p 2112 et seq., particularly this heading and beginning paragraph (p 2123):
“Title II — Admissibility of Confessions, Review-ability of Admissions in Evidence of Confessions in State Cases, Admissibility in Evidence of Eyewitness Testimony, and Procedures for Obtaining Writs of Habeas Corpus.
“Federal aid to the States is not enough to successfully combat the menace of crime. Much more is necessary. No matter how much money is spent for upgrading police departments, for modern equipment, for research and other purposes encompassed in title I, crime will not be effectively abated so long as criminals who have voluntarily confessed their crimes are released on mere technicalities. The traditional right of the people to have their prosecuting attorneys place in evidence before juries the voluntary confessions and incriminating statements made by defendants simply must be restored. It is tlie purpose of title II to accomplish this and other related objectives.”
Upon reading the “Declarations and Purpose” of the act, one would conclude naturally that the various ensuing sections were intended to apply in appropriate instances both in the courts of the States and the courts of the United States. However, a careful reading of section 3501 discloses that it applies only to criminal prosecutions brought by the United States or by the District of Columbia, thus leaving the States with none of the titularly declared aid, so far at least as section 3501 is concerned.
It is not for this Court of a State to decide whether section 3501 was a valid exercise of congressional power as claimed and denied in the respective senatorial briefs (1968 US Code Congressional and Administrative News, commencing at 1646 for the majority and at 1732 for the minority), or to consider whether by section 3501 Congress overreacted to Miranda’s “invitation,” or to deter mine whether section 3501 in some way modifies the application, in' the courts of' the States, of Miranda’s rulés and guidelines. We refer to the act, and to section 3501 in particular, only as an integral part ■of a yet unresolved Federal puzzle of national judicial concern. That puzzle is whether, upon and after the effective date of the act of June 19, 1968, .there, has been and is to be a more rigorous restriction of evidentiary use in the State courts of an accused’s confession, than obtains when a criminal prosecution is “brought by the United States or by the District of Columbia.” The question is bound to arise, however obliquely, when Jenkins v. Delaware, No 748, certiorari granted November 18, 1968, 393 US 950 (89 S Ct 380, 21 L Ed 2d 361), to review Jenkins v. State (1967), — Del — (230 A2d 262), comes to submission in the Supreme Court of the United States.
In Jenkins v. State (1968), — Del — (240 A2d 146), the supreme court of Delaware adhered, on retrial of Jenkins, to its previous ruling-:
“For record purposes, the defendant renews his contention that the rules of Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694), were applicable to the retrial. ''
“We held against that contention in our earlier decision (230 A2d 262, 274-276). Since then, the same conclusion has been reached by the supreme court of New Jersey in State v. Vigliano (1967), 50 NJ 51 (232 A2d 129), and by the Maryland court of, special appeals in Boone v. State (1968), 3 Md App 11 (237 A2d 787), among others. We adhere to our earlier ruling on this point.”
''. We align our judgment with those of the State courts which view Miranda as applying only to prosecutions commenced after Miranda became pro spectively effective. The judgment of the Court of Appeals is therefore affirmed.
T. E. Brennan, C. J., and Dethmers, Kelly, T. M. Kavanagh, Adams, and T. G-. Kavanagh, JJ., concurred.
Addendum (June 5, 1969):
As shown by footnote 5 ante, the foregoing opinion was delivered to the other Justices for their consideration on February 14 last. No other opinion of the defendant’s appeal has since been written. Now that the Supreme Court has decided Jenkins v. Delaware (1969), No 748, 395 US 213 (89 S Ct 1677, 23 L Ed 2d 253), (the pendency of which we noted above at 138), by ruling as we have ruled that Miranda does not apply to the retrial of a defendant whose first trial commenced prior to June 13, 1966, there is no need for withholding any longer a report of our decision.
APPENDIX.
(Entitlement, including “Declarations and Purpose,” and complete “Title II” including § 3501 “Admissibility of Confessions,” of Public Law 90-351, 90th Congress, HR 5037, June 19, 1968. )
“An act to assist State and local governments. in reducing the incidence of crime, to increase the effectiveness, fairness, and coordination of law enforcement and criminal justice systems at all levels of government, and for other purposes. ■
“Be it enacted by the Senate and House of Representatives of the United States of America in Con gress assembled, That this act may be cited as the ‘omnibus crime control and safe streets act of 1968’.
“Title I — Law Enforcement Assistance.
“Declarations and Purpose
“Congress finds that the high incidence of crime in the United States threatens the peace, security, and general welfare of the nation and its citizens. To prevent crime and to insure the greater safety of the people, law enforcement efforts must be better coordinated, intensified, and made more effective at all levels of government.
“Congress finds further that crime is essentially a local problem that must be dealt with by State and local governments if it is to be controlled effectively.
“It is therefore the declared policy of the Congress to assist State and local governments in strengthening and improving law enforcement at every level by national assistance. It is the purpose of this title to (1) encourage States and units of general local government to prepare and adopt comprehensive plans based upon their evaluation of State and local problems of law enforcement; (2) authorize grants to States and units of local government in order to improve and strengthen law enforcement; and (3) encourage research and development directed toward the improvement of law enforcement and the development of new methods for the prevention and reduction of .crime and the detection and apprehension of criminals. * * *
“Title II — Admissibility of Confessions, Review-ability of Admission in Evidence of Confessions in State Cases, Admissibility in Evidence of Eyewitness Testimony, and Procedures in Obtaining Writs of Habeas Corpus.
“Sec. 701. (a) Chapter 223, title 18, United States Code (relating to witnesses and evidence), is amended by adding at the end thereof the following new sections:
“ ‘§ 3501. Admissibility of confessions.
“ ‘(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall he admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.
“ ‘(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or ' not such defendant was without the assistance of counsel when questioned and when giving such confession.
“ ‘The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.
“‘(c) In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not he inadmissible solely because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing-such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer.
“ ‘(d) Nothing contained in this section shall bar the admission in evidence of any confession made or given voluntarily by any person to any other person without interrogation by anyone, or at any time at which the person who made or gave such confession was not under arrest or other detention.
“‘(e) As used in this section, the term “confession” means any confession of guilt of any criminal offense or any self-incriminating statement made or given orally or in writing.
“ ‘§ 3502. Admissibility in evidence of eye witness testimony.
“ ‘The testimony of a witness that he saw the accused commit or participate in the commission of the crime for which the accused is being tried shall be admissible in evidence in a criminal prosecution in any trial court ordained and established under article III of the Constitution of the United States.’ “(b) The section analysis of that chapter is amended by adding- at the end thereof the following new items;
“ '3501. Admissibility of confessions.
'' '3502. Admissibility in evidence of eye witness testimony.’ ”
See comment, 116 U of Pa Law Rev, supra at 317, footnote 7:
“With the exception of People v. Doherty (1967), 67 Cal 2d 9 (429 P2d 177, 59 Cal Rptr 857), the eases holding Miranda applicable on retrial do so without discussion of the issue. In Doherty the California supreme court relied on a refutation of the contrary position, rather than an affirmative reasoning.”
116 U of Pa Law Rev, supra at 327:
Escobedo v. Illinois (1.964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977).—Reporter.
The invitation was accepted as appears in the majority brief at page 1659. Quoting Miranda, the brief proceeds:
“Consequently, the committee feels that Congress through its power to prescribe rules of evidence in Federal courts, should respond to the majority opinion’s invitation to Congress, wherein the Court says:
“ ‘It is impossible for us to foresee the potential alternatives for protecting the privilege whieh might be devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket whieh will handicap sound efforts at reform, nor is it intended to have this effeet. , We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws’ (Miranda v. Arizona (1966), 384 US 436, 467 [86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974]).”
With the defendant languishing in prison and due in all probability to be freed should Miranda be held applicable upon his retrial, the foregoing opinion has been prepared to exclusion of other work. It is turned over to fellow Justices for their early consideration this 14th day of February, 1969.
June 2, 1969, 37 LW 4458, 4460.
For amendment changing commissioner to magistrate, see Public Law 90-578, 90th Congress, § 945, §301, subd (3),' October 17, 1968.—Reporter. | [
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T. Gr. Kavanagh, J.
This is an appeal from an order of the Court of Appeals granting plaintiff’s request for an order of superintending control prohibiting defendant insurance company from deposing the attending physician of plaintiff’s decedent husband.
Suit was brought in Allegan county circuit court on a policy of insurance issued by defendant company on the life of plaintiff’s husband. The defendant company denies liability under the policy claiming a material misrepresentation regarding the condition of the insured’s health on his application for insurance.
The defendant company noticed the taking of the deposition of the attending physician on October 19, 1967, but on October 26, 1967, the defendant circuit judge granted plaintiff’s motion for an order pro-
Mbiting the taking of snch deposition. On March 7, 1968, however, the judge vacated his October 26th order on the ground that the physician-patient privilege had been waived for discovery purposes when plaintiff submitted a letter from Dr. Alfinito wherein the doctor stated that he had treated the deceased for a cardiac condition commencing April 1, 1964, which was under fair control and did not prevent him from working.
We find no waiver of the privilege.
The plaintiff did not waive the privilege by submitting a death certificate. Gilchrist v. Mystic Workers of the World (1915), 188 Mich 466; Repala v. John Hancock Mutual Life Insurance Company (1924), 229 Mich 463.
The plaintiff did not waive the privilege by submitting the letter from Dr. Alfinito. Briesenmeister v. Supreme Lodge Knights of Pythias of the World (1890), 81 Mich 525; Polish Roman Catholic Union of America v. Palen (1942), 302 Mich 557.
A true waiver is an intentional, voluntary act and cannot arise by implication. It has been defined as the voluntary relinquishment of a known right.
There are some circumstances, however, wherein justice requires that a person be treated as though he had waived a right where he has done some act inconsistent with the assertion of such right and without regard to whether he knew he possessed it. This is the doctrine of estoppel.
Such is not the case here. The statute describes only one circumstance wherein a plaintiff shall be “deemed” to have waived the privilege and that is when the plaintiff “shall produce any physician as a witness in his own behalf” in a suit for personal injuries or malpractice.
Appellant urges that the order of the Court of Appeals prohibiting the deposition of Dr. Alfinito is too broad in that the doctor could properly testify as to matters not covered by the privilege. To the extent that defendant wishes'to adduce such evidence from the doctor, the order is modified to permit it. In all other respects it is affirmed.
No costs.
T. E. Brennan, C.. J., and Dethmers, Kelly, Black, T. M. Kavanagh, and Adams, JJ., concurred.
See 381 Mich 754.—Reporter.
PA 1961, No 236, § 2157 (CLS 1961, § 600.2157, Stat Ann 1962 Rev § 27A.2157). | [
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